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July 05, 2022 HUMAN RIGHTS

Protecting LGBTQ Liberty and Religious Liberty

by Chai R. Feldblum

Over the past years, religious individuals have increasingly sought exemptions from state and federal laws that protect LGBTQ people on the grounds that such laws burden their religious liberty. In response, several states have enacted laws that exempt religious individuals and organizations from such laws. The Equality Act pending in Congress seeks to roll back the ability of religious individuals to do so under federal law, and the U.S. Supreme Court is poised to take up the issue in some future constitutional case.

What should we do when the values of religious liberty and LGBTQ liberty conflict? A commitment to religious liberty is a core value of our democracy. For that reason, it is appropriate for the government to provide exemptions from laws that burden religious liberty when there is no compelling governmental reason not to do so. A commitment to the liberty of LGBTQ people to participate in all aspects of society is also a core value. Thus, religious objections should not be permitted to undermine that liberty when there is a compelling government interest to deny the exemption. Our challenge as a society is deciding how to balance these two competing values in our pluralistic society.

Our challenge as a society is deciding how to balance these two competing values in our pluralistic society.

Our challenge as a society is deciding how to balance these two competing values in our pluralistic society.

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The Importance of Religious Liberty

Religious liberty does not mean simply allowing people to practice their religion. It means ensuring that religious communities can flourish by transmitting their moral values within their communities and, for some religious individuals, it can mean not being forced to act in a manner they believe makes them complicit in sin.

Protection for religious liberty has ebbed and flowed over the years. For example, for decades, the Supreme Court interpreted the Free Exercise Clause in the federal Constitution to protect religious people from complying with laws that burdened their exercise of religion unless the law was narrowly tailored to a compelling government interest. Sometimes religious individuals won under that standard, such as when they were permitted to take their children out of compulsory public education, and sometimes they lost, such as when they were required to have a Social Security number and pay into the system despite a religious objection.

But in the case of Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court dealt religious liberty a significant blow. In that case, two employees were fired from their jobs at a drug rehabilitation center because they had used peyote, an illegal drug under state law, during a Native American religious ceremony. They were denied unemployment compensation because they had engaged in a criminal act that was considered workplace misconduct without exception, making them ineligible for unemployment compensation. Perhaps ironically viewed through today’s lens, Justice Antonin Scalia led the Supreme Court in ruling that the government could enforce a neutral, generally applicable law that burdened an individual’s religious liberty without having to justify the rule in any way. The Court’s decision required that the law did not target religion specifically and that the law did not have in place a system for individual exemptions that the government had refused to extend to those raising religious objections. In dissent, Justices Blackmun, Marshall, and Brennan decried this ruling as empowering the government to suppress religious liberty, and the civil rights community quickly rallied to support Congress in passing the Religious Freedom Restoration Act (RFRA) reinstating the previous obligation on the government.

The Supreme Court subsequently ruled that Congress lacked the constitutional authority to apply such an obligation with regard to state laws, although it could do so with regard to federal law. In response, many states enacted their own RFRAs.

Many observers now expect the Supreme Court to reverse the Smith standard completely. The Court sidestepped the issue in the recent case of Fulton v. City of Philadelphia. In reviewing a state law that required Catholic Charities to place foster children with same-sex couples as a condition of receiving state foster care funding, the Court applied the “compelling interest” test rather than the Smith standard because it concluded the law technically included a provision that allowed the state to provide exemptions from the law that it had refused to offer to Catholic Charities. The Fulton case contains important lessons on how this Supreme Court may apply the compelling interest standard in the future, but for the moment, the Smith decision stands.

Protection for religious liberty has also ebbed and flowed under federal statutes. For example, Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of religion. Through an interplay between the Equal Employment Opportunity Commission (EEOC), Congress, and the courts, that provision now gives religious employees the right to be accommodated in the workplace for the exercise of their religious beliefs. However, under Supreme Court case law, the “undue hardship” standard that an employer must meet to deny such an accommodation is relatively easy to meet.

The Danger When Religious Liberty is Used to Harm Others

In the great majority of cases, religious individuals or organizations seek exemptions as a shield against government laws that threaten their religious liberty. If the individual or organization is granted an exemption from such a law, other individuals do not suffer as a result.

But a law prohibiting discrimination against individuals, including an employment anti-discrimination law, raises a different calculus. An anti-discrimination law serves two purposes. It ensures that individuals with certain characteristics are provided full access to societal goods, such as employment, housing, health care, education, and public accommodations, without regard to that characteristic. It also ensures that such individuals are not subjected to the indignity of discrimination. It is irrelevant if a Black person, a woman, or an LGBTQ person might get a job, housing, health care, education, or access to a restaurant down the street. If they are denied access to any of these social goods and sent elsewhere, they have suffered the indignity of discrimination.

This creates a dilemma for some religious people. If a religious person believes that LGBTQ people who act on the basis of their sexual orientation or gender identity are sinful in the eyes of God, such a person might also believe that failing to discriminate against such individuals makes them complicit in sin. Many religious people, including those who believe that engaging in homosexual sex or living consistently with one’s gender identity is sinful, do not and will never experience any burden of complicity when they comply with a nondiscrimination law. But for those who do, they wish to use their religious liberty as an entitlement to gain an exemption from the law.

I believe we should respect the fact that some religious people truly experience a “complicity” burden when forced to comply with a nondiscrimination law. Of course, because some people may make this claim simply to escape coverage under the law, courts should apply a basic sincerity test to establish the claim of a complicity burden. Deference and humility in assessing sincerity are essential because many non-religious people may be skeptical of what is important to a religious person.

Many courts have too easily dismissed the claims of a religious complicity burden and have pronounced that as long as a religious individual can practice their religion, an anti-discrimination law cannot be said to impose a serious burden on their religious liberty.

This is what the Sixth Circuit decided in the case of EEOC v. Harris Funeral Homes, 884 F.3d 560 (CA6 2018), when Thomas Rost, a funeral home owner, fired Aimee Stephens, a longtime employee when she informed him she was transgender. The Sixth Circuit nevertheless went on to apply the compelling interest standard of RFRA. It concluded that prohibiting discrimination on the basis of gender identity is a compelling government interest, and allowing a person who raises a religious complicity concern to gain a pass from the law fatally undermines that purpose. That is the correct legal analysis that our society should make.

The problem for LGBTQ people is that many of our lower courts, and most importantly our Supreme Court, may not come to the same conclusion. They may decide that prohibiting some forms of discrimination, such as race discrimination, is a compelling government interest, but that prohibiting other forms of discrimination, such as discrimination against LGBTQ people, is not. This is not a farfetched concern. The Office of Federal Contract Compliance Programs in the U.S. Department of Labor under the Trump administration issued a regulation concluding that it had “less than a compelling interest in enforcing nondiscrimination requirements—except for protections on the basis of race—when enforcement would seriously infringe the religious mission or identity of a religious organization.” This regulation is currently being rescinded by the Biden Department of Labor. A second problem is that even if courts decide that prohibiting discrimination against LGBTQ people is a compelling government interest, they may decide that permitting exemptions for people with religious objections does not fatally undermine that interest. That would strike a serious blow against LGBTQ liberty in this country.

The Way Forward

The best way to resolve this dilemma is to amend RFRA to make clear that the compelling government interest standard will not apply when religious liberty is used in a manner that harms others. In return, there should be strengthened protection for religious people and organizations for practices that do not harm others. For example, the “undue hardship” standard in Title VII should be strengthened so that religious employees can get workplace accommodations that do not harm others. Religious organizations should be assured that their tax exemption status will not be jeopardized, and religious educational institutions should be assured that their accreditations will not be withdrawn if they discriminate on the basis of a protected characteristic.

The same resolution should be attempted in the constitutional setting. The blow that religious liberty took in the Smith case was wrong. If a neutral, generally applicable law results in a substantial burden on religious liberty, the government should be put to the test of justifying that the law, without exceptions, is necessary to achieve a compelling government interest.

But it would be harmful to restore the compelling government interest test now if it would permit religious individuals and organizations to use religious liberty in a manner that harms others. Religious and civil rights organizations should therefore come together to present an analysis to the Supreme Court that strikes the right balance between religious liberty and LGBTQ liberty. That balance would revive the compelling government interest standard in all cases in which a neutral, generally applicable law burdens religious liberty, with the proviso that all anti-discrimination laws inherently advance a compelling government interest that would be undermined by providing individual exemptions to that law.

Religious liberty and LGBTQ liberty are core values of our democracy. When those liberties conflict, society must make a moral judgment as to how it will resolve that conflict, and those judgments will be reflected in our laws and judicial opinions. We can only hope that the right moral and legal judgments will be made.

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Chai R. Feldblum

Vice Chair, AbilityOne Commission

Chai R. Feldblum is the vice chair of an independent federal agency, the AbilityOne Commission, responsible for increasing employment of people with significant disabilities. She is a former commissioner of the Equal Employment Opportunity Commission and a former professor at Georgetown University Law Center.