Volokh Conspiracy: Religious freedom laws should not exempt antidiscrimination provisions

Below, co-blogger Dale celebrates the fact that Indiana is going to exempt civil rights (antidiscrimination) laws from its state religious freedom act.

I dont think antidiscrimination laws presumptively deserve special status, and I therefore dont think they should be exempted from state RFRAs, or should otherwise be exempted from civil liberties protections, statutory or constitutional. In other words, state RFRAs shouldnt exempt antidiscrimination laws, and when courts are enforcing constitutional rights such as freedom of speech and freedom of religion, they should not find that antidiscrimination laws constitute compelling government interests sufficient to override those rights.

I argued this point in great detail in my 2003 book, You Cant Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws. The first twenty-six pages of the book can be found here. Some of the arguments from that book appear in this essay in the North Carolina Law Review. this essay in the Missouri Law Review, this article in the University of Chicago Legal Forum, this article in Social Philosophy and Policy, and this article in The William and Mary Bill of Rights Journal. A chapter dealing with the ACLUs abandonment of civil liberties in favor of antidiscrimination laws is excerpted here.

As a historical aside, the liberal lefts hostility to RFRA didnt start with gay rights, but with cases in the 1990s in which religious landlords who owned a few rental units declined to rent to unmarried, heterosexual individuals. This ran afoul in some states of laws banning discrimination on the basis of marital status.

At the time, liberal civil libertarian groups like the ACLU didnt claim that this was just bigotry disguised as religion, but rather that though it was the exercise of religion, (a) antidiscrimination concerns, even ones as trivial as heterosexual couples being denied an apartment in a huge metro area with many other willing landlords, should trump religious freedom; and (b) given that courts might not always agree that antidiscrimination concerns are a compelling interest sufficient to trump statutory religious freedom rights, they would no longer supports RFRAs that didnt exempt antidiscrimination laws.

Thus, liberal opposition to RFRA seems to have originated as a combination of treating antidiscrimination as a trump over almost any other right (the national ACLUbut not all state ACLUshas so far exempted pure speech), and hostility to assertions of rights by traditional Christians, as opposed to the peyote-smoking Native Americans, Sabbatarians, Amish, and other groups more traditionally associated with free exercise claims.

In any event, gay rights advocates do have a legitimate concern that religious conservatives are seeking to target laws protecting people on the basis of sexual orientation rather than protect religious freedom, as such.

I have heard a very prominent religious conservative argue that religious freedom should protect the right of someone to not photograph a gay marriage because of religious objections to such a marriage, but should not protect the right of someone to not photograph an interracial marriage because of religious objections. This individual may have a coherent reason for believing that, but if so it wasnt apparent from his remarks, beyond the possibility that he thinks it would be politically infeasible to defend the latter.

So heres my suggestion: instead of exempting antidiscrimination laws from state RFRAs, instead write into the laws a provision that the compelling interest test should be applied with the same rigor regardless of which group an antidiscrimination law protects. Therefore, a photographer should have the same right, but only the same right, to refuse on religious grounds to photograph a gay wedding as an interracial wedding, or a wedding between a Jew and a Gentile, or whatever.

If RFRA advocates arent willing to defend the right of someone who believes that interracial or interreligious marriages are against Gods will to refuse to participate in such weddings, then they dont have much of a leg to stand on when it comes to gay marriage. But the better position is to allow exemptions in all those situations.

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Volokh Conspiracy: Religious freedom laws should not exempt antidiscrimination provisions