Religious Freedom and LGBT Rights Continue to Coexist

Jennifer C. Pizer

Conservative religious voices have been condemning same-sex relationships since long before the marriage equality movement gained traction in the United States. As the freedom to marry became a reality for lesbian, gay, and bisexual (LGB) people in more and more states, some of those religious voices began to call for exemptions from secular laws to permit continued discrimination against those seeking to marry, or married to, a same-sex spouse.

As the Supreme Court prepared in the spring of 2015 to hear Obergefell v. Hodges, these calls came to dominate the legislatures of approximately half the states. More than 100 bills were introduced seeking to expand rights to discriminate against lesbian, gay, bisexual, and transgender (LGBT) people, with three-quarters of them seeking to do so by expanding religious rights. In 2016, following the Supreme Court’s marriage decision in Obergefell v. Hodges, 576 U.S. ___ (2015), the number of such bills roughly doubled.

Most of these proposals have not passed; however, those that have become law include permission for mental health professionals in Tennessee to refuse services to LGBT people on religious grounds, for certain child welfare agencies in Michigan to discriminate on religious grounds when providing publicly funded services, and for individuals and institutions in Mississippi to discriminate in many contexts based on religious beliefs about marriage, adult sexual relationships, and conceptions of gender. (As this article goes to print, the Mississippi law has been enjoined and is being reviewed by the Fifth Circuit Court of Appeals, Barber v. Bryant, No. 3:16-CV-417-CWR-LRA and No. 3:16-CV-442-CWR-LRA, 2016 U.S. Dist. LEXIS 86120 (S.D. Miss., June 30, 2016) (enjoining H.B. 1523).)

In Congress, U.S. Senator Mike Lee of Utah and U.S. Representative Raul Labrador of Idaho had introduced the First Amendment Defense Act (FADA, S.1598 and H.R. 2802) two weeks before the Obergefell decision. Providing the template for Mississippi’s now-enjoined law, FADA proposes exemptions from any federal law if complying would be inconsistent with one’s religious belief or moral conviction that marriage is for different-sex couples only, or that adult sexual relationships should be confined to such marriages. The bill’s sponsors assert that those who act negatively toward others based on such beliefs should not face penalties, including potential loss of government funding.

All this legislative activity shows the concern among some that equality and inclusion of LGBT people will mean lesser rights and marginalization of those who oppose these changes. But are such concerns well-founded? We certainly have seen headlines about clashes between same-sex couples and those who object on religious grounds. To many, these disputes have appeared new, dramatic, and sometimes confusing. But how significantly has the legal landscape changed? This article surveys common questions—some for which we have clear answers under current law, and others for which we all should stay tuned.

How Must the Government Treat Same-Sex Couples and LGBT Individuals?

We have known since the Supreme Court’s decision in Romer v. Evans, 517 U.S. 620 (1996), that government may not, without more, discriminate against LGB people based on the majority’s religious views or notions of morality. The Court affirmed that principle in Lawrence v. Texas, 539 U.S. 558, 575 (2003), striking down the remaining state laws against same-sex intimacy (so-called sodomy laws), and again in 2013 in United States v. Windsor, 570 U.S. ___ (2013), striking down the federal Defense of Marriage Act (DOMA). Obergefell was a final confirming step, with Justice Anthony Kennedy stressing that the government’s duty to treat same-sex couples equally regarding marriage does not restrict the religious beliefs or free expression of those who disagree.

Chief Justice John Roberts and Justice Samuel Alito objected strongly that requiring equality for same-sex couples will lead to labeling opposing religious views as bigoted. Time will tell. Such shifts have happened to greater and lesser extents after other major civil rights decisions. This article will focus only on what current law requires.

The court order putting an end to County Clerk Kim Davis’s short-lived refusal of marriage licenses to same-sex couples in Rowan County, Kentucky, is among the best recognized illustrations of the principle that individual employees—including top-level employees—may not cause government to discriminate, regardless of the employees’ religious beliefs. Although there is less case law confirming the principle, we should expect the same result if a public employee were, for religious reasons, to refuse equal service to members of the public who are transgender.

Public employees with religious objections to performing one or more job duties are entitled to an accommodation of their religious needs. But they only may be excused from particular duties when doing so does not impose an “undue” burden on the government employer. Causing the government to discriminate or otherwise harm members of the public is such a burden. If an agency has sufficient staff, and if an employee’s religious beliefs would require performance of a duty in a discriminatory manner, it can be possible for the agency to relieve the employee of that duty. But employees do not have a generally protected religious right to refuse to perform basic job duties, and to shift those duties onto others, and yet to keep their jobs.

How Must Commercial Businesses Treat Same-Sex Couples and LGBT Individuals?

What the many state public accommodations cases tell us. From Maine, to New York, to Iowa, to Colorado, to New Mexico, to California, to Oregon, to Washington, and to Hawaii, there have been cases and public arguments about religious refusals to rent event venues and lodging; to sell cakes, flowers, and other wedding-related goods and services; and to provide medical care and even haircuts. These cases only arise where there is a nondiscrimination law that applies. For wedding-related goods, services, and facilities, these generally are state public accommodations laws, there being no applicable federal law at present.

Consistently, these business owners have claimed religious exemption rights based on both the federal and their state constitutions. Most of these claims have failed, first, because the U.S. Constitution provides limited protection against enforcement of religiously neutral, generally applicable laws. Second, even when state law provides greater protection for exercise of religion in business contexts, the courts nonetheless have concluded there are compelling public interests in ending sexual orientation (and gender identity) discrimination, and that laws forbidding that conduct should be enforced like laws forbidding discrimination based on race, sex, marital status, or religion. We all need these laws to accomplish their goal—a public marketplace in which no one is turned away just because of who they are.

This body of case law has been evolving steadily since before same-sex couples could marry. Obergefell has put a brighter spotlight on these issues by requiring that same-sex couples may marry nationwide without changing whether federal nondiscrimination laws or laws of particular states protect those couples. Arizona, Indiana, and Georgia have exemplified this situation with their high-profile fights over legislation to expand religious rights to discriminate while still lacking those basic civil rights protections in state law.

What the federal nondiscrimination rules and cases tell us. There currently is no federal public accommodations law requiring businesses to treat same-sex couples and LGBT individuals equally when business owners have religious objections to doing so. However, other federal laws do offer significant protection in health care, employment, housing, and other contexts. For example, the Patient Protection and Affordable Care Act (ACA), often called “Obamacare,” bans sex discrimination in federally funded health services and programs. This ban has been construed as forbidding most discrimination against LGBT people. Similar protection for LGBT people is found under Title VII of the Civil Rights Acts of 1964, the Fair Housing Act, the Equal Credit Opportunity Act, and the Education Amendments Act of 1972.

However, if the federal government seeks, for example, to enforce the ACA against owners of a business or for-profit medical clinic who object on religious grounds to treating LGBT people equally, the owners may invoke the federal Religious Freedom Restoration Act (RFRA) and demand an accommodation or exemption from the law. This is thanks to the Supreme Court’s reinterpretation of RFRA’s scope in Burwell v. Hobby Lobby, 573 U.S. ___ (2014), which held that owners of closely held corporations can claim to be exercising religion when operating their business. If they can show the federal law burdens their religious practices substantially, they can hold the government to the highest standard of compelling public need and narrowest tailoring in order to enforce the law.

The Hobby Lobby case concerned inclusion, or not, of birth control within employer-provided health insurance. The Court’s 5–4 ruling that commercial business owners may object on religious grounds to items in others’ health insurance has had alarming potential implications for LGBT people in employment, health care, and other settings. We will see in due course whether these concerns are justified.

Although the case law is divided, RFRA more generally has been understood as creating a right to object to government enforcement, but not a defense to claims of other private parties. It is less clear whether Hobby Lobby has opened the door for religious objections to federal laws—such as Title VII—that already have a specified accommodation for religious rights.

A recent federal district court decision concerning the employment rights of a transgender worker confirmed that businesses may assert RFRA defenses only against the government (EEOC v. R.G. & G.R. Harris Funeral Homes, Case No. 14-13710 (E.D. Mich., Aug. 18, 2016)). But the case involves a Title VII claim, and that statute includes a particular religious accommodation limited to religious organizations, not commercial businesses. The Sixth Circuit may have more to say about whether businesses have RFRA defenses against Title VII claims brought by the government because the U.S. Equal Employment Opportunity Commission (EEOC) has appealed Harris Funeral Homes. Other pending lawsuits challenge the numerous court decisions and federal agency guidance concluding that sex discrimination bans necessarily cover most anti-LGBT discrimination in health services and education programs that receive federal funding. One or more of these cases is likely to arrive in the Supreme Court sooner or later.

Meanwhile, members of Congress who believe the Supreme Court misinterpreted RFRA in Hobby Lobby introduced the “Do No Harm Act” (H.R. 5272) in 2016. It clarifies that RFRA was not and is not intended to excuse discrimination, denial of access to health services, or other specified harms to third parties, including when the government is enforcing those third parties’ rights under federal laws.

What rights do religious individuals have to refuse service to same-sex couples or LGBT individuals? As noted above, public employees are entitled to an accommodation when employment responsibilities conflict with their religious beliefs or practices. However, the duty to accommodate only requires employers to bear minimal (not “undue”) burdens. Past cases have concluded that the government is not required to accommodate public workers whose anti-LGBT religious beliefs require them to proselytize to co-workers or members of the public or to refuse services to LGBT people. Under Title VII, a similar analysis applies to private-sector employment. Employees are entitled to a reasonable accommodation for their religious needs in non-religious workplaces; however, the duty to accommodate does not protect harassment, proselytizing, or requiring others to participate in prayer.

What rights do religious organizations have to exclude or to refuse services to same-sex couples or LGBT individuals? Solemnization of marriage. Houses of worship are not public accommodations and do have the strongest religious liberty protections. Religious denominations and clergy have full authority to solemnize only those marriages that comport with their religious tenets. Concerns that clergy or churches may face government penalties or discrimination claims for refusing to marry same-sex couples are baseless. Likewise, constitutional protections for free speech and free exercise of religion guarantee that there can be no punishment for sermons or religious teachings that condemn same-sex relationships or gender transition treatment. At the same time, of course, government can forbid particular conduct, regardless of religious motivation, if it is dangerous or otherwise harmful.

Rental of facilities for wedding ceremonies or receptions. Whether a religious organization can be required to rent its facilities for a same-sex couple’s wedding or wedding reception depends on whether there is a public accommodations law that applies. These vary widely. Generally, it matters whether the facility is open to the public, as opposed to private membership clubs. Some laws exempt religious organizations entirely; others do not. If an organization routinely generates revenue by renting a facility to people of different faiths and does not keep the space for religious activities consistent with its faith, it may have a difficult time arguing why it should be exempt from an otherwise applicable public accommodations law. Its argument will become harder still if the organization receives public grants or free or subsidized use of public property subject to a nondiscrimination commitment.

Religiously affiliated medical and social services agencies. Catholic hospitals and other religiously affiliated medical and social services providers play significant roles in our health, nursing, counseling, child welfare, and other professional services systems. Many of these systems receive substantial amounts of public funding, especially federal funding through Medicaid, Medicare, the ACA, the Fair Housing Act, and other federal programs that have nondiscrimination requirements.

Consequently, if a religiously affiliated provider denies visitation and medical decision making by the same-sex spouse of a patient, there likely will be an actionable sex discrimination claim under Section 1557 of the ACA. If that provider generally offers spousal health coverage but denies equal coverage for the same-sex spouses of its employees, or seeks to fire employees who have a same-sex spouse, actionable sex discrimination claims are similarly likely.

Further, the Section 1557 regulations issued by the U.S. Department of Health and Human Services (HHS) forbid discrimination against patients based on gender identity. This means providers may not deny medical care based on the transgender status of a patient. Section 1557 has no stated exemption for religious organizations; if they seek federal funding, the nondiscrimination rules would seem to apply. However, these organizations certainly may seek their own exemptions based on RFRA. We are starting to see cases presenting RFRA-based objections to the ACA’s nondiscrimination protections for LGBT people. It remains to be seen how courts will assess the relative burdens on the religious practices of these providers, the countervailing public interests in equality, and whether the proper result is to require that the service be provided.

Similar legal questions can arise when religiously affiliated homeless shelters, emergency relief agencies, and nursing homes discriminate against married same-sex couples or refuse to house transgender individuals in facilities appropriate for their gender identity. Often, the public contracts and grants on which these agencies depend do require equal, culturally competent treatment of beneficiaries, including LGBT people. Sometimes the contracts also require equal treatment of LGBT people in hiring and workplace benefits.

One high-profile lawsuit challenges HHS’s regulation that forbids most anti-LGBT discrimination as forms of sex discrimination. The case was filed in Texas by the Franciscan Alliance of Catholic health care providers, Texas and four other conservative states, and an association of Christian medical and dental providers (Franciscan Alliance, Inc., et al. v. Burwell, Case No. 7:16-cv-00108-O (filed Aug. 23, 2016, U.S.D.C., N.D. Tex., Wichita Falls Div.)). It follows objections the U.S. Conference of Catholic Bishops submitted in opposition to the HHS regulation, and it echoes arguments made consistently since the George W. Bush administration for why religious organizations should have a religious freedom right to receive taxpayer funding without being bound by nondiscrimination rules that protect members of the public.

Consequently, as more civil rights protections for LGBT people are invoked in the wake of marriage equality for same-sex couples, debates are heating up about the enforceability of nondiscrimination terms in public contracts and grants. For decades, governments at every level have conditioned eligibility for taxpayer funds on agreements to end specified forms of historic discrimination. Such incentives have catalyzed workplace diversity and greater compensation fairness, including widespread availability of domestic partnership benefits. But as noted above, there now are proposals in Congress (e.g., FADA) and some states to preempt such terms and to mandate exemptions from nondiscrimination requirements when there is a religious objection concerning marriage or sexual relationships. In Mississippi, a law to that effect (H.B. 1523) was enacted easily, although it has been enjoined preliminarily (Barber v. Bryant). Michigan passed three bills in 2015 to permit religiously affiliated child welfare agencies to discriminate against LGBT people in provision of publicly funded adoption and foster care services. The looming question is whether these and similar laws are anomalies marking the end of an era or whether they represent a future trend.

Employment for diverse religious duties, including religious education. Like concerns that government will require clergy to perform marriage ceremonies inconsistent with their faith, concerns that churches or other religious bodies will be required to hire LGBT people—or anyone else—as clergy or to teach religion, are entirely baseless. The U.S. Supreme Court has confirmed that the Constitution’s firm protections for religious freedom and free speech mandate a “ministerial exception” to civil rights laws to secure the freedom of denominations to select and manage their own clergy.

Recently, we have seen numerous religiously affiliated schools firing long-time, often-beloved teachers after they married their same-sex partner. Many of these schools have been Catholic. Often their terminations have prompted distressed responses from the local community and a belief that the employees should have rights of redress. Most frequently, if the employee had religious duties, including teaching of religious matters, the ministerial exception may apply, meaning the employee is stripped of employment protections that otherwise might exist under state or federal law. This means we also can anticipate some employers who choose not to fire employees with a same-sex spouse nonetheless objecting to providing equal benefits for employees’ same-sex spouses. The same may be true for employees with religious duties whose transgender status comes to be known.

Employment by religious organizations to perform non-religious duties. Can religious organizations end the employment of workers who marry a same-sex spouse or who come to be known as LGBT? The first question is whether a nondiscrimination law applies. Title VII, the federal law, accommodates religious-organization employers by allowing them to limit employment to people of the same faith. It does not, however, permit such organizations to discriminate on the other grounds forbidden by the statute—race, color, national origin, or sex. Thus, we can anticipate cases in which an LGBT employee who performs no religious functions and does identify as the same religion as the employer, and who is fired because of their sexual orientation or gender identity, will sue, relying on the protection against that type of sex discrimination.

The right of employees to bring such a claim is clearer under the laws of states that forbid discrimination based on sexual orientation or gender identity without an explicit accommodation for religiously affiliated employers. Barrett v. Fontbonne Academy, litigated to a successful settlement under Massachusetts law by GLBTQ Legal Advocates & Defenders (GLAD), illustrates that civil rights laws should protect workers from discrimination when their duties include no religious functions. Fontbonne Academy, a Catholic girls’ high school, hired Matt Barrett to direct its food services program but canceled his employment upon learning he had a husband. The Massachusetts Superior Court granted summary judgment to Barrett on liability, prompting the resolution (Memorandum of Decision and Order, No. CV2014-751, Norfolk Cty. Super. Ct. (Mass. Dec. 16, 2015)).

Can religious schools reject LGBT students? Can they deny student or faculty housing? These questions can be more complicated than they might appear. The first question always is whether there is a nondiscrimination rule that applies. Title IX of the Education Amendments Act of 1972 forbids schools that receive federal funding from discriminating based on sex. That protection has been interpreted as providing significant protection to LGBT students; however, the statute broadly exempts religious schools, meaning they may discriminate despite the public funding.

Many state and local civil rights laws that cover schools also either exempt religious schools or allow these schools to impose conduct rules and to limit access to on-campus housing. But religious schools exempted from state or local nondiscrimination rules can be held to have voluntarily assumed nondiscrimination obligations by seeking and accepting public funding. Although there is nothing remarkable about the fact that taxpayer dollars often come with requirements, including nondiscrimination commitments, some religious schools (like some religiously affiliated nonprofits) believe they are entitled to public funding if they serve the public. As noted above, however, the extent to which religious institutions can demand public subsidies is contested. The Supreme Court may provide new guidance this term when it decides Trinity Lutheran Church of Columbia, Inc. v. Pauley, Supreme Court Case No. 15-577, which concerns whether a church school can demand public resources for resurfacing its playground.

From the other direction, California just enacted SB 1146, which requires religiously affiliated schools to give notice if they intend to rely on the religious exemption in Title IX, meaning they may refuse or expel students for noncompliance with their morality code, such as by coming out as LGBT.

What Are the Legal Implications for Organizations Such as the Boy Scouts?

The Boy Scouts of America is a social organization with religious and other membership requirements and constitutionally protected expressive purposes. The organization likely would not have been challenged for excluding gay young men, as well as atheists, if it had not claimed to be open to all males and thereby obtained significant public support. State public accommodations laws vary in whether they cover membership organizations such as the Boy Scouts. When they do, there can be close questions of how the equality interests of minorities weigh against the free speech and associational interests of others, as is illustrated by the Supreme Court’s sharply divided decision in Boy Scouts of America v. Dale, 530 U.S. 640, 659-61 (2000).

Obergefell does not change that legal analysis, but it may be influencing the social calculus. The Boy Scouts’ national leadership recently changed its rules to allow gay scout leaders, while leaving it to individual chapters to implement that change or not.

What Do Religious Organizations Risk When They Choose to Discriminate?

Some opponents of LGBT equality express alarm that churches risk losing their tax-exempt status for condemning same-sex relationships, and clergy risk hate speech prosecutions. Not true! Clergy and houses of worship are entirely protected in their beliefs and speech. Conduct, on the other hand, always may be regulated to preserve public safety.

The legal status of religious nonprofit schools, medical institutions, and social service agencies is different from churches. When these organizations engage with the general public to provide professional services, they can be regulated to protect the public. Unlike that of churches, their nonprofit status is not a constitutional entitlement; rather, it is a benefit granted because their purpose is to benefit the public. The Supreme Court reminded us that this special benefit can be withdrawn when it ended Bob Jones University’s tax-exempt status owing to its white supremacist interracial-relationship ban. But that sanction has been exceedingly rare.

Religious nonprofits and other organizations can face sanctions under state public accommodations laws when those laws apply and an organization lacks a persuasive free speech or religious liberty defense. As discussed above, however, there are interesting, emerging disputes concerning entitlement to valuable public contracts and other forms of subsidy to organizations that insist on discriminating in who they hire or how they treat beneficiaries.

Just Say No to Religious Exemptions from Civil Rights Laws and Rules

Religious freedom is a fundamental right and a core American value. It rightly is protected by the U.S. Constitution and the constitutions of every state. But those constitutional protections were never intended to excuse harming others. Whether the issue has been racial segregation, sex discrimination in employment, domestic violence, child abuse, or fraud, the courts have rejected religious justifications for injurious conduct.

Martin R. Castro, chair of the U.S Commission on Civil Rights, emphasized this point in the Commission’s recent briefing report to President Barack Obama:

Religious liberty was never intended to give one religion dominion over other religions, or a veto power over the civil rights and civil liberties of others. However, today, as in the past, religion is being used as both a weapon and a shield by those seeking to deny others equality. In our nation’s past religion has been used to justify slavery and later, Jim Crow laws. We now see “religious liberty” arguments sneaking their way back into our political and constitutional discourse . . . in an effort to undermine the rights of some Americans. This generation of Americans must stand up and speak out to ensure that religion never again be twisted to deny others the full promise of America. (tinyurl.com/jj768rl)

As Justice Kennedy recognized in United States v. Windsor when striking down the federal Defense of Marriage Act, discriminatory laws cause unequal treatment and also send a harmful, stigmatizing message. And when laws facilitate others’ discriminatory conduct, the losses and pain inflicted are not lessened if the motive was religious. Nationwide marriage equality certainly is affecting attitudes and inspiring more inclusion. But let’s be clear: These hard-won, legally binding celebrations of love and commitment must be followed by the protection of fully equal laws. We are not there yet.

Jennifer C. Pizer

Jennifer C. Pizer is senior counsel and director of law and policy for Lambda Legal.