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.