Because of its likely rebuff to a key progressive principle, Espinoza is potentially the most significant Supreme Court case this term.
After the furor directed at Indiana for enacting a religious freedom measure, some are asking whether it is possible to hit the reset button in the struggle over religious freedom and gay rights. Others are still scratching their heads: What exactly do these state versions of the 1993 Religious Freedom Restoration Act (RFRA) do? Are they anti-gay? Should people who care about civil rights boycott any state considering them, in order to “take a stand against” RFRA?
Let’s cut through the rhetoric. RFRAs are not malign. They respond to instances when governments enact laws burdening religious practice, which happens in contexts far removed from gay rights. Governments pass traffic laws prohibiting steel wheels, a problem for Mennonites. Governments tell the Amish they must display orange, not gray, safety triangles on their horse-drawn buggies. Just last year, Kentucky authorities jailed 10 Amish men for refusing to display flashy triangles that “conflict with their pledge to live low-key and religious lives.” The Amish had asked to use gray reflective tape instead, or to hang lanterns at night.
Confronted with heavy-headed regulations, people of goodwill think, “Really? The government can’t be more flexible?” RFRAs reflect the intuition that the government should not trammel religious believers simply because it can. They test whether there are compelling reasons for government to regulate and whether those purposes can be accomplished by less restrictive means.
So how did laws protecting religious believers against overreach get mixed up with gay rights?
Sadly, many religious believers themselves urged the linkage. Beginning with Arizona’s failed RFRA amendment last year, some religious believers said they needed RFRA to “stave off a rapid shift in favor of gay rights.” This is not an isolated comment. It is a refrain heard outside statehouses from Indiana to Arkansas to Georgia. Supporters of the Indiana RFRA said it would “help protect religious freedom in Indiana” by affirming that a “Christian business owner should not be forced by the government to permit a male cross-dresser to use the women’s restroom.” In Georgia, talk radio commentators said Georgia’s proposed RFRA “is needed to protect business owners who want to deny service to gays.”
To be clear, there are no gay rights in Indiana, Georgia, Arizona, or Arkansas to stave off. The statewide laws in all four states do not prohibit discrimination based on sexual orientation in housing, employment, or public accommodations (although there are municipalities in each that provide these protections).
Even if there were such nondiscrimination laws, religious believers would almost certainly lose, RFRA or not. Nondiscrimination laws serve the compelling interest of ensuring that individuals are not fired for irrelevant characteristics. They serve the compelling interest of permitting lesbians and gays to be served in restaurants or to rent apartments like everyone else.
Americans support such protections in droves. And they should. Consider California prep-school football coach, Burke Wallace, who married his male partner, and was thereafter fired, he says, because of it. Having a gay football coach was a “bad idea,” in the opinion of some parents. In California, firing Wallace for this reason would be illegal. In Indiana, Arkansas, Arizona, and Georgia, it is not. If there is a “license to discriminate” in these states, it is not RFRA that created it. It is the absence of statewide laws banning discrimination based on one’s sexual orientation.
Not surprisingly, gay rights advocates challenge “the newly energized effort” to enact RFRAs “as almost entirely a reaction to the gay-rights movement.” When religious believers articulate the need for RFRAs as a way to keep gay rights in check, it is hard to dispute that claim.
Prominent religious leaders and others have scorched the Indiana legislature for amending the RFRA to clarify the legislature’s intent. Enacted under tremendous pressure, the Indiana “fix” simply provides that RFRA does not:
establish a defense to a civil action or criminal prosecution or refusal by a provider to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service.
Although the “fix” reflects in law how RFRAs are interpreted in practice, the president of the Southern Baptist Convention’s Ethics and Religious Liberty Commission Russell Moore called it a “train wreck” that must be defeated. Said Moore:
It is like paying ransom to a kidnapper—a complete abandonment of principle in the face of political pressure from those bent on redefining marriage and imposing a radical agenda on the country.
Georgia’s RFRA sponsor, Republican Senator Josh McKoon, opposed a similar amendment to a RFRA bill that ultimately failed, saying “That amendment would completely undercut the purpose of the bill.” The amendment would have made clear that “nothing in these sections shall be construed to establish or eliminate a defense to a civil action or criminal prosecution based on a federal, state, or local civil rights law.” Georgia Representative Roger Bruce, a Democrat, called McKoon on his opposition, saying McKoon claimed that the RFRA “was not intended to discriminate. Yet you say that the proposed changes would undermine the purposes of the bill. If that is the case then that tells me that the purpose of the bill is to discriminate.”
Civil rights carve-outs appear in other RFRAs, like those in Texas and Missouri. The text of any “civil rights carve-out” is important if RFRAs are to continue to police “low-profile conflicts between diverse religious practices and diverse laws and regulations,” as Professor Doug Laycock notes.
But when sponsors and religious leaders say that clarifications affirming that RFRA leaves civil rights law untouched represent a “complete abandonment of principle,” it sets back the cause of religious freedom.
The move to enact these laws comes at a time of great social change. A federal court struck down Indiana’s ban on same-sex marriage last year, as courts around the country have done. Because the bans were not repealed by legislation, the electorate, in some sense, finds itself unprepared—and unnerved.
Something more constructive could have been done from the get-go. At times of great social change, it is far better to find ways to live together in peace, without one person’s rights coming at the expense of another—or being seen as a way to stave off another’s rights.
In his post for Law and Liberty, Utah Republican state Senator Stuart Adams distilled lessons from that state’s recent legislative experience. Utah chose a different path: it advanced the rights of homosexuals and the religious faithful. Senator Adams knows of what he speaks: he shepherded the Utah Compromise through arguably the “reddest” state and legislature in America.
The Utah Compromise delivered up remarkable protections for the LGBT community. Utah now extends protections against discrimination in housing and hiring that surpass what even New York provides (the latter provides no explicit protections for transgender people).
In affording landmark protections to the LGBT community, the Utah legislature also gave religious believers important assurances against being penalized for holding traditional views. In Utah, no covered employee can be fired for expression of religious or political beliefs outside the workplace. No one can do a “Brendan Eich” in Utah and fire an employee for speech outside the workplace—in Eich’s case, for making a perfectly legal donation to the campaign for Prop 8 years before. Neither can an employer fire employees for attending a gay rights parade.
Just as our sexuality is non-negotiable, so, too, are our religious convictions.
As for religious and political speech in the work place, the Utah Compromise offers protection there as well. Employers may bar all talk of politics or religion, but if such speech is allowed, religious speech is on the same playing field. An employee can wear her cross to work, right next to her Equality Utah pin.
Perhaps most urgent for religious believers is the clarity the faith community receives in the Utah Compromise. Faith communities are struggling to sustain their received traditions about marriage in a world that recognizes same-sex marriage.
If care is not taken to be clear, sexual orientation protections that are about commercial services like taxis and large apartment buildings inadvertently spill over to a religious sacrament like marriage. Utah—like all the states that have voluntarily enacted same-sex marriage—went to great lengths in their statutes to be clear. For example, religious counseling that occurred before same-sex marriage can occur after, exactly as it did before. People of faith need to know how to proceed in a world that recognizes same-sex marriage and the Utah Compromise charts the way forward.
Protecting both sets of civil rights in the same set of legislation makes it clear that the extension of protections to the LGBT community need not wash out the uniquely religious character of faith communities. The lesson of Utah and Indiana is this: Harmonizing LGBT rights and religious liberty is not only right and decent, it is the key to calling a truce in what seems a relentless culture war.