Dr. Jillian T. Weiss

Freedom of Religion and Non-Discrimination Law

Filed By Dr. Jillian T. Weiss | September 15, 2010 5:00 PM | comments

Filed in: Politics, Politics
Tags: Employment Non-Discrimination Act, ENDA, First Amendment, freedom of religion, Non-Discrimination Act

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.


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There are religious beliefs that support racism, segregation, sexism and antisemitism. There are evangelical denominations that believe black skin is the Mark of Cain. This was once used as justification for slavery.

Several religions believe that women must submit to their husbands and men in general. It's pretty wide spread too--Catholicism, those Evangelical Mega Churches like Saddleback and Hinduism. The Catholic Church may prohibit women priests, but Catholics can't discriminate against women in the work place.

Why is sexual orientation and gender identity different?

This is a really good question, GrrlRomeo, and this goes to the heart of the issue. I'm now rushing to finish the article by the deadline (tomorrow, oy vey, and this is the last extension they're giving), and the answer has many complexities to deal with, but I think the bottom line is that there really is no distinction that makes a difference. If the courts allow exceptions for sexual orientation discrimination, they will have to allow exceptions for race discrimination, and that's just not going to happen.

Dr Weiss, did I miss whether its a belief or the religious practice that's operational in this type of claim? I would want a religious plaintiff to prove that refusing to hire someone is a religious practice or that having to hire someone infringes on their right to religious practice. I think the real claim here is free speech, but SCOTUS has ruled that there are limits to free speech where it would infringe in another constitutional right (such as equal protect). Am I off base?

There might very well also be a free speech or free association claim, but my task here is just to examine the free exercise of religion claim. However, because free exercise claims that are paired with another constitutional claim receive additional protection, it is an important issue. I just didn't have room to include it in this little vignette of my much longer article. I note that the only inquiry the courts may make is as to whether the religious belief is "sincere," not the clarity, correctness or prevalence of the belief. Courts here aren't allowed to parse religious doctrines.

My existence, as a subjective fact on the ground, does not in any way objectively constitute an impediment to the free exercise of your faith. I'm I missing something here or is your taking offence with my humanity a stumbling block to the veneration of your (g)od?

On the other hand, perhaps, as it has been revealed to you, your unfettered free exercise demands that, to properly honor your (g)od, you work out your salvation by discriminating against others?

I think the latter claim is the one that is being made here, Renee. The claim is, as you said, your unfettered free exercise demands that, to properly honor your (g)od, you work out your salvation by discriminating against others. The question is whether this claim squares with the court precedents. I don't think it does, ultimately. The $64,000 question is why it doesn't. I'll let you know when the article comes out. :)

I too wonder if the arguments regarding religious freedom to discriminate against GLBT are the same as for race and sex. At first, I thought it might be different becasue race and sex are recognized as protected classes under constitutional amendment that post dates, and therefore trumps, the first amendment. However, it is the government that is Constituionally required not to discriminate against those classes, not private persons. The resoan private persons cannot discriminate based on race or sex in employment practices is because of Congressional statutes, like Title VII, and not because of a Constitutional right. Recall that Titl VII does not apply to employers who have less than 15 employees, and that could not be the case if individuals have a Constituional right to be free of employment discrimination on the basis of race or sex. SO I really do wonder whether any argument for first amendment protection for private employers to discriminate against GLBT should apply also to the rights of private employers to discriminate against persons on the basis of race and sex.

Glinda, I think you've hit the nail on the head. This isn't about whether the government has an obligation to protect LGBTs. It's about whether such a law is allowed, as against a constitutional claim of freedom of religion. And I do believe that the argument for religious freedom to discriminate based on sexual orientation and gender identity is the same as the argument for the right to do so on the basis of race and sex.

If they get to discriminate against me because of their religion, do I get to discriminate against them because of my Atheist beliefs?

It seems like these people don't want equality they want special rights.

That's a very good question, Suzan. Strangely enough, in the 1963 Sherbert case, which is important because it's the first case finding that the government must have a "compelling interest" in order to uphold the law, the Court said that a religious claim based on philosophical beliefs, such as those of Thoreau, would not qualify. But I think later cases recognized the right of atheists. Your question is particularly interesting, because it raises the specter of religion vs. religion, which the First Amendment is supposed to prevent. In other words, if my religion prohibits my hiring people of other religions, do my Free Exercise rights allow me to invalidate a law that is supposed to stop religious discrimination? That would be a pretty howdy-do. I don't think any court would go for that.

Exactly... Here in D/FW a Baptist Church was kicked out of the Baptist Fellowship because it didn't wish to remove photographs of gay couples from its yearbook.

That I'm Atheist and atheism isn't a dominant belief or non-belief system using that poses a thought question.

Is religion a suspect class for inclusion in non-discrimination protections since people can and often do change religions?

But more over claiming the privilege to discriminate against LGBT/T people based on "religious beliefs" opens a whole can of worms.

Using this logic people could claim their religion doesn't permit them to say serve or employ people of color, or the current new scapegoats Latinos or Muslims.

Further many of these organizations with "Traditional", "Family" and "Values" in their titles are simply the KKK in new drag. Is there a test for validity of "religious beliefs"?

Jillian, This is a timely topic because in the last anaylsis, almost ALL anti-LGBT discrimination tracks back to religious belief. The Iowa Supreme Court basically conceded this fact when it struck down the state's ban on same sex marriage last year, noting that the state could not hold a particular religious belief even though many voters held anti-gay religious beliefs.

As you noted above, looked at from another perspective, the issue really becomes a question of whose religious belief will be given "special rights" - those who hold anti-gay beliefs or myself and others who hold religious beliefs that see being LGBT just fine with the Almighty. All too often, it seems that the Christianists are the ones afforded special rights under the law.

Angela Brightfeather | September 16, 2010 11:32 AM

In my view, religious beliefs track back to one major thing, fear. An employer who discriminates against a GLBT person based on his or her religious beliefs, is fearful of breaking or not following the beliefs of their faith and therefore, even if earnest, fears sinning and going to hell, or wherever their religion says they will go for breaking the rules.

Those people are no more or less wrong than the people who discriminate against people in other countires because they are a lower caste, or are Suni intead of Sufi. Yet to bring that to their attention is like sticking them in the eye with a sharp stick and inviting tirades of "it's not the same thing."

What people who discriminate and justify it because of their religious beliefs really does, is to ally them with those who fear for their religious beliefs being lost, which of course does not work in a democracy, with a Bill of Rights where people are supposed to be equal. However it does work in a religious state where people are born with less hope of ever bettering themselves.

Using religious fear to cement your position in life as "preferred" or "better than" others, just does not work in America, but equality clauses do expose the Achilles Heel of those who wish to keep their status using religion. That is where the division of church and state should take affect, but unfortunately it is becoming less clear every day with the pontification of politicians like Palin and Demint who walk around all day complaining about how fearful they are of everything America is and where we are going as a country.

Put in the context of Fear vs Freedom, or Fear vs Hope, or Fear vs Equal Rights, I would think that most Americans would understand what is really happening. Perhaps that is why recent polls show that the majority of Americans are for equal rights in employment, marriage and service to our country. The choice between living in fear or not has always been something that Americans have risen to heroically in our history and the grasping at straws and do or die efforts by the religious minded to use their religion to discriminate against others, are the convulsions those people are going through to keep on living in fear of their beliefs. If they were satisfied with the separation of church and state, none of us would be having 1/10'th the trouble we are having living together today. Believing that the biblical fears trump anything in the Declaration of Independence or Bill of Rights, makes me think that people who believe that would be a lot happier living in another country like Afganistan or Iran. They would certainly have more in common with the Taliban.

My interpretation of a so called christian reading the bible:

Kill your wife on your wedding night if it turns out she isn't a virgin....turn page
Kill those that work on the sabbath....turn page
Stone children to death for talking back...turn page
Hate and kill homosexuals. ah, here is something I can use.

The fundamental 'morals' and 'laws' of the bible are cherry picked by christians so that they can practice their hate and bigotry. I say call them out in public if their kid talks back to them and they don't pick up a stone. It is all so fake.

Related to Dana's comments we have the elusive "Real" Christian. I.E. anytime anyone does anything horrible in the name of God other Christians get to duck and cover by claiming the pathological nut case was not a Real™ Christian.

Obviously a Real™ Christian does not literally follow the Bible as Dana points out. If they did they'd have to condone slavery, rape, racism and misogyny - all of which are supported in the Bible.

So how can we identify Real™ Christians? I'm hardly a Biblical scholar so I open the question to the religious leaders of all denominations. Please post your replies here.

In comparison, Canada tends not to have exemptions, but has a general limit on all human rights, at "undue hardship." This is generally left up to the courts to determine.

I don't know if this is especially better, but it does give more flexibility in law and interpretation. I guess the benefit or detriment is determined by prevalent social attitudes at the time of the case.

(This is changing under the Conservative government here, where both the government and far right interest groups have been learning and often supported by US-based parallels.)

But outside allowing courts to weigh the merits of cases individually, any system that specifically encodes restrictions to rights in law entrenches targeted protected classes as less than equal.

Amber Thompson | September 16, 2010 12:14 PM

They cry about their religious beliefs, while denying us ours.

What about when different religious beliefs collide?

For example, if the boss is Baptist and wants to fire me for being gay, does that trump my membership in, say, the MCC church which would say the opposite on LGBT rights? Does the employees religious beliefs have any bearing?