Is The Right's Religious Freedom Focus a Strategic Blunder?

By Mike Dorf

Continuing with the theme of religious exceptions to general laws that I explored on SCOTUSblog and here on DoL in connection with the pending Supreme Court cases on the ACA contraception mandate and RFRA, my latest Verdict column looks at the Arizona bill now on Governor Jan Brewer's desk that would expand the state's RFRA, and at similar bills around the country. As I explain in the column, these bills differ somewhat from each other. Whereas other state bills would explicitly license religious exceptions to laws forbidding sexual orientation discrimination, the Arizona bill would expand the state RFRA generally. If enacted, it would provide broader religious exceptions (including exceptions for for-profit businesses) from laws restricting race discrimination, protecting the environment, etc. Nonetheless, the clear impetus for the Arizona bill is the same as the impetus for the more expressly homophobic bills that have been introduced in sister states: Fear that people with religious objections to same-sex marriage or to homosexuality more broadly will have to set aside those objections to comply with anti-discrimination law.

The conclusion of the column (spoiler alert!) is that the Arizona bill (whether or not signed by Gov. Brewer) underscores the need for the expansion of federal anti-discrimination law to cover sexual orientation discrimination.  Under the Supremacy Clause, federal protection against sexual orientation discrimination would supersede any state exceptions. To be sure, absent an explicit proviso, even a federal statute would be subject to the federal RFRA--and there's a risk that the SCOTUS will construe the federal RFRA to provide religious exceptions for for-profit businesses in the pending cases. Indeed, even without the federal RFRA, it may not yet be possible to secure congressional legislation from Congress expanding anti-discrimination law to cover sexual orientation without including a too-broad religious exception.

But the key word in the foregoing sentence is "yet." Given the long-term trend of public opinion, it is pretty clearly only a matter of time before sexual orientation discrimination is widely regarded as odious. Yes, there will be outliers, and they may never go away.  Aftet all, it's 2014 and the Russian government is employing Cossacks as paramilitary, so history is long. But even now, social conservatives in much of the country are giving up on fighting against LGBTQ equality generally, and focusing their attention on securing religious exceptions. My question for today is this: Is that focus a strategic blunder?

To contextualize that question, consider the following vastly over-simplified account of the last 60 or so years of contestation around social issues.

The first great organizing tool for the creation of the modern socially conservative right was race. From signs calling for the impeachment of Earl Warren through Nixon's Southern Strategy, the modern GOP's aging base of white Southern Christians was built on prejudice against, and fear of, African Americans. Race retains potency today, but for at least the last several decades, open appeals to racism have been outside the mainstream of national politics. For a (long) time, they were coded by discussion of crime, welfare, affirmative action, etc., and those issues have not disappeared, of course. However, race has become only one arrow in the socially conservative quiver.

With the emergence of the modern women's movement in the 1960s and 1970s, social conservative activists rallied around opposition to the ERA, but even though they won that battle, they lost the war--a result that is not especially surprising: It's hard to "other-ize" half the population when they are your own family members.

To my mind, the most effective issue--indeed the only issue with real staying power--for social conservatives, has been abortion. Opposition to legal abortion is rooted for many people in views about the proper role of women, but that's not all it's about. It is possible to think that abortion raises serious moral issues while holding generally progressive views about sex and sex roles.

Accordingly, I believe that the socially conservative right made a strategic blunder when, roughly in the early 1990s, so much of its energy was diverted into opposing LGBTQ rights. Whereas opposition to abortion can be, and I'll admit often is, justified on the ground that it aims to protect innocent vulnerable life, opposition to LGBTQ rights was and is gratuitously mean. The point has emerged clearly whenever trial courts have sought evidence that might be used to support laws banning same-sex marriage or otherwise denying basic rights to LGBTQ Americans: The laws' supporters stumble to articulate nonoffensive justifications, at best relying on "tradition."

Of course, the traditions that have been unsuccessfully invoked to defend anti-gay laws are often rooted in, or at least closely tied to, religious views. Concurring in the since-overruled Bowers v. Hardwick, the late CJ Burger wrote that "Judeo-Christian moral and ethical standards" were a sufficient basis for outlawing "homosexual conduct." But that was never a good argument. In a country with separation of church and state, religious doctrine is an insufficient basis for denying any group of people their basic rights.

However, religious exceptions appear to stand on a different footing. Someone who claims a religious exception from some general obligation does not say that her religious beliefs are a sufficient basis for public policy. She only asks that the contrary views of the majority not be the basis for compelling her to act or refrain from acting in a manner that contradicts her religious faith. Accordingly, there is a strong initial appeal to the move from religion as the basis for discriminatory laws to religion as the basis for opting out of laws combating discrimination.

Nonetheless, I believe that the right's shift towards seeking broad religious exceptions will fail, and may even be a strategic blunder on par with its opposition to LGBTQ rights in the first place. The reason is simple: Religion is not a trump card when the rights and interests of others are involved. Sure, the Supreme Court unanimously upheld a ministerial exemption from anti-discrimination law in the Hosanna-Tabor case. In my view, the Court erred by rooting that principle in the Constitution rather than in statutory construction, and I think the scope of the exception it recognized is too broad, but I understand the argument that the Catholic Church shouldn't have to ordain female priests as fundamentally different from the argument that a for-profit employer shouldn't have to provide contraception coverage or a for-profit florist shouldn't have to serve same-sex couples. In the one case, the exception is largely about the internal regulation of the religion; in the others, it's about interactions with the rest of society. There are borderline cases, of course, but the basic distinction is easy enough to grasp.

By seeking religious exceptions from laws governing society very broadly, social conservatives are over-playing their hand. Past experience here is a useful guide. Slaveowners often made biblical arguments to justify slavery; yet nobody thought that once slavery was outlawed, there should be exceptions for people who held slaves as a matter of religious obligation.

Finally, even if social conservatives succeed in securing religious exceptions from laws securing equality for LGBTQ Americans, those exceptions will eventually become unusable. Even today, the federal RFRA and state-level equivalents would, in theory, permit people who hold religious objections to racial equality to resist anti-discrimination laws based on race. But virtually no one raises such claims because the same forces that made expressly racist views outside the mainstream of public opinion have made expressly racist religious views impermissible. Nearly all churches that once maintained such views no longer do so because religious views do not exist in a vacuum. Even (perhaps especially) "fundamentalist" religious views are formed in reaction to the broader social context.

Postscript: Readers should not infer from the foregoing that I am no longer pro-choice. For reasons that are connected to my views about non-human animals, I think that mid-to-late-term abortions of sentient fetuses raise serious moral issues, although I don't think that the immorality of (some) abortions necessarily justifies making them illegal. Professor Colb and I are working on a book that explores the complex connections between abortion and animal rights.