I'm writing a law review article about the First Amendment right to free exercise of religion, and its interaction with non-discrimination statutes based on sexual orientation and gender identity.
Here's some of my introduction to the article, setting the stage for a deeper analysis of the law.
I'm specifically looking at the right of a non-church-related employer to discriminate against gay or transgender employees based on religious belief, as against a law prohibiting job discrimination based on sexual orientation and gender identity.
In a number of recent political issue campaigns regarding the enactment of employment protections based on sexual orientation and gender identity, opponents of such laws have often raised concerns about the infringement of the religious freedom of business owners.
While there are often legislative or judicial exceptions for churches as employers, ordinary business owners who are religious are not generally exempted from the application of such statutes. The legal status of such claims, however, has rarely been addressed directly in court opinions or the legal literature.
This article will address the right of a non-church-related employer, in a jurisdiction with a statute prohibiting discrimination based on sexual orientation and/or gender identity, to raise the First Amendment Free Exercise Clause as a defense to the application of the statute in regard to discrimination against a gay or transgender employee.
Most jurisdictions in the United States do not prohibit employment discrimination because of sexual orientation or gender identity. In the 12 states and almost 200 municipalities and counties that do have such protection, there are usually legislative or judicial exceptions to the application of such statutes to religious corporations, churches and church-related employers. These statutes do, however, apply to employers that are not religious corporations, churches or church-related employers, even where the employer has specific religious beliefs against homosexual, bisexual or transgender persons. In addition, the workplace sex discrimination provisions of the Civil Rights Act of 1964 ("Title VII") have been interpreted by some federal courts to prohibit workplace discrimination based on gender identity or expression. Can an employer with such religious beliefs successfully raise the First Amendment Free Exercise Clause as a defense to a charge of discrimination based on sexual orientation and/or gender identity?
There has long been a dividing line, albeit unclear, between the right to religious (and atheistic) beliefs, which are absolutely protected, on the one hand, and, on the other, religious practices, which have received somewhat less protection. The Court has applied the strict scrutiny standard of review to laws that regulate specific religious practices, requiring the government to show a "compelling interest narrowly tailored to achieve that result." That's a high standard, and it's not clear that even a non-discrimination law could clear it, when faced with a challenge based on religious freedom grounds.
In regard to laws of general application that are religion-neutral, however, such as drug laws that have the incidental effect of prohibiting religious practices involving drugs, the Court has used the "rational basis" standard of review. That would be an easier standard for non-discrimination laws to meet, even despite the rigors of a constitutionally based First Amendment religious freedom claim. The Court specifically noted that the stringent "strict scrutiny" test could nevertheless be applied if there were a "hybrid" claim, involving other constitutional rights.
Congress, however, desirous of providing a higher level of protection to religious practices, passed the Religious Freedom Restoration Act ("RFRA") in 1993.
RFRA subjects all laws that infringe religious practices, even laws of general applicability, to strict scrutiny as applied to religious practices. That would have made it hard for non-discrimination laws to succeed.
The Supreme Court. however, declared RFRA unconstitutional in 1997, as applied to state and local governments. Why? It ruled so on the grounds that the RFRA law interfered with the Court's authority to determine how the 14th Amendment should be enforced. (The 14th Amendment prohibits states from taking away life, liberty or property without due process of law, and the First Amendment is considered part of the process that is due.)
This ruling left untouched RFRA's effect of requiring strict scrutiny with regard to federal statutes.
Based on all this, the legal situation would seem to be fairly clear. Based on these doctrines, generally, a state or local law prohibiting employment non-discrimination based on sexual orientation or gender identity would be reviewed under the rational basis test, as against a Free Exercise Clause challenge, unless it infringed other constitutional rights.
A federal statute on this subject, to the contrary, when challenged as a burden on religious practice, would be subject to strict scrutiny under RFRA.
However, despite its seeming simplicity, the legal situation is far from clear. First and foremost, although employment non-discrimination statutes are statutes of general applicability, which are said to be governed by a rational basis standard of review, this can easily change. The so-called "hybrid" claim, which apparently requires only the invocation of another constitutional right, would be judged under the strict scrutiny standard of review. It does not appear that the other constitutional right has to be fully effective, on its own, to take down the statute. (If there were such a requirement, then the claim would not be, in fact, a "hybrid" Free Exercise claim, and the invocation of the Free Exercise Clause would appear to be so much surplusage.)
Employment discrimination defendants who object to employing a gay, lesbian, bisexual or transgender employee can easily invoke rights of free speech, free association, Fifth Amendment Takings Clause, the Due Process Clause or the Equal Protection Clause, and there are likely others as well.
In addition, while strict scrutiny has been called "strict in theory but fatal in fact," commentators have noted that courts have been fairly lenient in finding that governments have compelling interests as against Free Exercise claims. Courts ruling on rational basis tests have also been fairly strict in some cases, finding that statutes have no rational basis, and not affording the traditional deference to governmental assertions of interests.
Thus, it is impossible to analyze employer Free Exercise clause claims based on standard of review alone. The meaning and import of the constitutional right to "free exercise" as it relates to claims involving sexual orientation and gender identity non-discrimination is far from clear.