Part 2 in a three-part series
(read part 1, “The Supreme Court and Same-Sex Marriage,” here)
(read part 3, “After the Supreme Court’s Ruling on Same-Sex Marriage: A Long Road Ahead.” here)
By Julia K. Stronks
Much of the tension regarding faith and LGBT civil rights has focused on marriage licenses given out by state governments. Should LGBT couples be allowed to be married? If a state grants marriage licenses to all couples, should churches be required to host same-sex weddings and should clergy be required to officiate if the couple wants a religious ceremony? And in this week’s Supreme Court case, should the U.S. Constitution be interpreted to require all states to allow same-sex marriage?
These are important issues, but I think the Indiana and Arkansas religious freedom arguments of the first two weeks in April 2015 demonstrate that even bigger questions lie on the horizon. Both LGBT employment rights and protection for LGBT customers loom as a great challenge for our legislators because these discrimination issues have to be balanced with the constitutional protection of religious liberty. It’s a complicated matter.
Equal Protection for LGBT People or Religious Freedom for Conservative Christians?
To understand these issues, we have to have a clear grasp of two different things. First, what are states doing that feels threatening to some people of faith? Second, what are the legal requirements regarding religious freedom?
I’ll start with two examples from Colorado, and then explain what happened in Indiana and Arkansas.
Last year we saw a number of Christian bakers, photographers, and florists across the country refuse to serve the wedding needs of same-sex customers. In some of the states where these businesses were situated, the state government had passed a consumer protection law that said if a business offers goods or services for profit, that business may not discriminate on the basis of race, gender, sexual identity, creed, or religion.
Colorado has such a non-discrimination consumer protection statute.
There are two bakers in different parts of Colorado that have both been charged with violating this law. In one case, a Christian baker refused to serve a same-sex couple, saying that baking a cake for their wedding would go against his religion. The customers said they were discriminated against on the basis of their sexual identity. In another case a baker was asked to bake and decorate a cake that expressed God’s rejection of homosexuality. The baker offered to bake a cake at the request of a Christian man but refused to write the customer’s messages about God on the cake. Instead, the baker offered some decoration and said she would give the customer the tools to write his own message. The customer said he was discriminated against on the basis of his religion.
Are these two cases the same or are they different?
The Colorado Civil Rights Division has held that they are different. In the first case, there was a refusal to serve a client based on a protected status (sexual identity). The baker was fined. In the second case, the customer was served but the message, which involved a religion, was refused. Because the discrimination was against a message or idea, not against the person, the Administrative Law judge said this baker’s action was not illegal. Appeals are pending.
Cases like this are emerging in many different states, and we are seeing a number of appeals that are likely to make their way to the Supreme Court. Conservative Christians are losing at the state level, so they are appealing with the argument that the consumer protection statutes themselves violate the First Amendment religious liberty clauses.
These appeals are important because there is a big question that the Supreme Court has thus far left unanswered. We know that religious freedom is in the Constitution. We also know that states are allowed to protect customers with non-discrimination laws. But, what happens when religious freedom and consumer non-discrimination face off against each other? Which should trump?
Technically, one should say with ease that First Amendment religious freedom wins because it is in the Constitution, and the Constitution trumps state laws. But, religious freedom has never been absolute. My right to practice my religion, protected by the First Amendment, is nonetheless subject to the government’s interest in keeping people safe. For example, if I said it was my religious belief that there should be a big bonfire in my yard every night, the government has the right to limit my bonfire in “compelling” circumstances.
For sixty years, First Amendment jurisprudence had held that when governments wanted to pass legislation that burdened faith they had to pass something called the “compelling interest test.” The government had to have a compelling reason to burden faith, and the government had to take the least restrictive policy approach possible to achieve its interests. In 1990, though, the Supreme Court set aside this test and said that if a law was not targeting religion then it could stand without the high burden of the two-part test. The compelling interest test seemed to be gutted.
But scholars, legislators, and people of faith across the country cried out in frustration against this Supreme Court move, and they turned to legislation to restore the compelling interest test. They passed the federal Religious Freedom Restoration Act (RFRA) which put the compelling interest test into federal law. This was an important move for religious liberty, particularly for the religious liberty of small groups that do not have a lot of political power.
RFRA now is used to protect religious voices in a wide variety of areas. But, RFRA can also be used to elevate religious freedom over other rights, and this is where the Indiana and Arkansas legislation comes in.
RFRA, Hobby Lobby, and a Power Play
When the federal government passed RFRA it was not very controversial. People saw it as legislation that told the Supreme Court the First Amendment needed to be taken more seriously. At the time, some states passed their own RFRAs and those were not controversial either. But, all that changed last summer.
In last summer’s Hobby Lobby case, the Supreme Court held that RFRA had been written in such a way that it covered not just the religious beliefs of people and non-profits like churches or charities, but it also covered businesses. For the first time ever, if a business felt that a law impacted the religious beliefs of the owners, the owners had a mechanism to get the law tossed out as a violation of the compelling interest test. This meant that employment laws, consumer protection laws, even tax laws could all be tested as violations of religious belief in the for-profit realm.
It was a shocking development, and the case told conservatives what kind of legislation they should look to if they wanted to protect themselves from serving the LGBT community: RFRAs. One year after Hobby Lobby we saw states like Indiana and Arkansas suddenly working to pass their own RFRAs. The new RFRAs, however, did not parallel the federal RFRA— mostly because they were written with a different intent. The intent seemed to be directed at protecting religious businesses from being forced to interact with LGBT customers or employees.
This was a power play, and it backfired.
In a huge backlash, businesses across the country spoke out against these new RFRAs as blatant discrimination. Eventually, both Indiana and Arkansas amended their legislation to parallel the federal RFRA.
Religious Liberty and Compromise
This whole story has been hard to watch. Some Christians are indignant and see only the imposition on their conservative religious belief; others see the religious freedom argument as thinly veiled hatred of LGBT people. But those of us concerned about both religious liberty and equity for LGBT citizens are caught in a bind. I believe in equity for LGBT people, but at the same time I believe faith-based institutions should be allowed room to shape themselves according to their deepest beliefs. Is it possible to have both?
I think that before Hobby Lobby there was a small window available for compromise. It seemed that conservative Christians were recognizing that they had lost ground on the same-sex marriage issue and accepted that public, legal rights should be given to all. But, they wanted room to live according to their own deepest values when it came to services relating to marriage because marriage, to them, was inherently religious. At the same time, LGBT groups wanted basic equality in terms of public rights like marriage and the right to be employed; but many understood that in their own search for room the public square, they should also be concerned about space for conservative Christians in the public square. Had the discussion stayed focused on exempting conservative Christians from being involved in wedding related services there could have been room for each group to recognize the interests of others.
Hobby Lobby and the RFRA actions of Indiana and Arkansas, though, changed this. Conservatives took too big a step in failing to limit the protection they wanted to weddings. They seemed to say they wanted room to discriminate in general, declining to serve gay customers in a broad variety of ways. They deserved the backlash.
At this point, however, things are still up in the air because even though the compelling interest test has been misunderstood, it exists. The test is important and we do not yet know how it would be applied to things like the consumer protection non-discrimination statutes.
The Supreme Court is going to bring us back to focusing on the requirement that faith-based institutions need room to define themselves under both RFRAs and the First Amendment. Then legislatures will respond with laws that highlight either the rights of religious groups or LGBT equity. There is still much work to be done, and I hope that in the coming decade of discussion we try to be calm in the face of these arguments. Democracies should try to make room for both equity and liberty. It’s a very hard balance but it’s an important one. We all should be a part of the conversation, seeking justice for different groups.
© 2015 by Christian Feminism Today