The LGBT Community’s Right Against Invidious Discrimination and the Proper Scope of the Right to the Free Exercise of Religion

The Culture Wars continue unabated, and sometimes the fight is only resolved in court—but, sadly, individual constitutional battles often embody conceptual confusion as much as an authentic dispute of the nation’s fundamental values.  The classic example is the newly enacted legislation in Arizona designed to protect the religious freedom of individuals and businesses who see it as a religious duty not to do business with members of the LGBT community.  The law clarifies that, if the individual or business owner believes that a law forbidding discrimination violates their deeply-held religious beliefs, the government would have to show that the challenged law furthered a compelling state interest in the least restrictive way possible.

Conservative defenses embody Orwellian doublespeak.  In rejecting the claim that the proposed law would permit discrimination under the guise of religious freedom, the law’s defenders contend, matter-of-factly, that its only purpose is to prevent the “onslaught of attacks on religious freedom” that have recently become so prevalent. “The bill is not about allowing discrimination,” said Steve Yarborough, the law’s sponsor, but is, instead, “about preventing discrimination against people who are clearly living out their faith.”  So—we are told—to avoid “discriminating against” the religious, Arizona must permit the religious to discriminate against the LGBT.   Joseph La Rue, of Alliance Defending Freedom, argued that Americans “should be able to live and work according to their faith, and government shouldn’t be able to tell us that we can’t do that.”  More bluntly, Josh Kredit, legal counsel for the conservative Center for Arizona Policy, offered this assertion:  “We see a growing hostility toward religion.” 

The law’s defenders also contend that the enacted law simply reaffirms, and perhaps strengthens, the Arizona’s prior law, which required government to show a compelling state interest to support any law that substantially burdens the free exercise of religion.  According to this argument, the law simply tweaks an existing Arizona statute to clarify that private individuals may rely on their religious freedom in defending civil litigation.  In a judicial decision in another state, a court had reasoned that the First Amendment right to the “free exercise” of religion could only be invoked as a claim or defense in litigation with government—and hence that provision had no application to a civil suit between two private parties over the applicability of state anti-discrimination law. 

Thus the pre-existing Arizona statute was amended to clarify that it could be relied on “regardless of whether the government is a party to the proceeding.”  (S.B. 1062 Sec. 2-D.)  The new statute also added language to make clear that businesses and corporations could invoke the protections against burdening religion (S.B. 1062 Sec 1-5), and reaffirmed that the “exercise of religion” includes acting or refusing to act “in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.”  (Id. at Sec. 1-2.)  In addition, the new statute makes explicit that the statutory requirement of when the religious may be “substantially burden[ed],” is “intended solely to ensure that this article is not triggered by trivial, technical or de minimis infractions.”  (Id. at Sec. 2-G.) 

It certainly is true that this sort of legislation was “inspired” by the court decision allowing a gay couple to sue a photographer who would not document a same-sex commitment ceremony.  The goal, accordingly, is to reaffirm Arizona’s intention to protect the religious freedom of individuals or businesses who object on religious grounds to engaging in certain business acts.  But the intended implications have not been lost on the media to whom it has all been presented.  Thus even Fox News relied on an Associated Press article that concluded that “Republican lawmakers in Arizona want to give business owners the right to refuse service to gay patrons if doing so goes against their religious beliefs.”  (Feb. 20, 2014 --  http://www,  The LA Times concluded, based on the content of the bill and the legislative debate, that the law “would bolster a business owner’s right to refuse service to gays and others if the owner believes doing so violates the practice and observance of his or her religion.” 

From the perspective of the New Mexico religious wedding photographer, the wedding case centered on the right of someone in the business of engaging in artistic expression to resist the state in effect requiring them to use that expression in a particular way.  The photographer relied on an important line of precedent recognizing a First Amendment right “not to speak” in ways that one finds objectionable.  Although religious freedom was also relied on in that case, the New Mexico court avoided considering the substantive merits of the free exercise defense by determining that free exercise claims and defenses could not be litigated in private lawsuits.  In any event, the claim that a business photographer’s religious freedom is undercut by the legal requirement that they serve the entire public to whom they advertise is quite a stretch.  The only plausible religious burden one could imagine would be that a religious person may feel that being any sort of “participant” in a gay wedding would amount to “facilitating” wrongful or “sinful” conduct.  But suppose the vendor was not a wedding photographer, but a grocery store clerk, who did not want to “facilitate” sin by loading the groceries of gay people.  Or suppose an employer believed it against her religion to employ a gay person, in that it would just facilitate his or her sinful lifestyle.  A defense to a discrimination claim? If any “facilitation” question is necessarily a matter of degree, one might find it doubtful that a photographer could perceive themselves as being close enough to fairly be seen as “facilitating” sin.

And the real wedding photographer actually said that she wanted to “refrain from using her photography to communicate a message that she finds deeply offensive.”  Elane Photography v. Willock, No. 30, 203, at 8 (May 31, 2012).  Many Americans might well feel great sympathy for this perspective—but the statement itself still sounds more like “prejudice,” however well or poorly grounded, than a sense of religious duty or responsibility.  Nowhere in the opinion of the New Mexico Supreme Court does the photographer in that case articulate how being legally required to photograph infringes on her religious liberty.  Conservative voices like to say that invoking anti-discrimination laws necessarily reflects hostility toward religion. Perhaps.  But imagine our response to the 1970’s-era southern wedding photographer who invoked religious freedom to justify refusing to photograph an interracial wedding. 

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