It’s a regular April day in Jackson, Mississippi, but those with a keen eye for detail might notice the bright blue stickers adorning the windows of Campbell’s Bakery, William Wallace Salon, Fat Cat Ceramics, and more than 13 other establishments. Sporting the slogan, “If you’re buying, we’re selling,” these stickers symbolize the efforts of Mitchell Moore—the owner of Campbell’s Bakery—and many other civil rights proponents to speak out against Mississippi’s recent passage of Senate Bill 2681, the Mississippi Religious Freedom Restoration Act (RFRA), which allegedly affords businesses a “license to discriminate” against LGBTQ individuals.
Mississippi’s bill was not unique. Two months before SB 2681 passed, Arizona Governor Jan Brewer vetoed her state’s own version of that bill, SB 1062, in response to both civil and corporate backlash from across the nation. In particular, the National Football League issued a statement threatening business leaders that it would pull Super Bowl XLIX from the state, just as it had relocated Super Bowl XXVII in 1990 after Arizona refused to honor Martin Luther King, Jr. Day.
The Arizona bill sparked a nationwide debate about how to satisfy two valued liberties: the freedom of LGBTQ individuals from discrimination and the freedom of religion. Striking the balance between these two freedoms, however, represents a complicated and contentious legal issue. This debate has far-reaching consequences and raises crucial questions, such as whether religious freedom can even exempt people from laws against child labor and whether average citizens can also discriminate against others based on political beliefs.
On the one hand, civil rights advocates stressed the unintended consequences of allowing business owners to deny service to certain groups of people based on religious beliefs. “When we’re dealing with inherent aspects of people’s identity—their sex, their gender, their race, their sexual orientation—there’s certainly a threat if there are people who see themselves as exempt from laws that prohibit discrimination on those bases,” Steve Kilar, the communications director for the American Civil Liberties Union of Arizona, explained to the HPR. On the other hand, proponents of such religious freedom bills have long argued that they simply serve to protect religious liberty as guaranteed in the First Amendment. And they have had considerable success: 17 states have already adopted their own versions of the federal Religious Freedom Restoration Act (which was passed in 1993) in order to prevent the government from infringing on perceived religious liberties.
Arizona’s SB 1062 would have merely served to amend Section 41-1493 of the Arizona Revised Statutes, which prohibits laws from “substantially burdening a person’s exercise of religion.” However, the bill raised alarm, because it sought to expand the definition of “a person” to include corporations. Regardless of how small this change may seem, civil rights proponents to see potential for serious overinterpretation and argue that religious freedom bills open a Pandora’s box of problems.
Unintended Consequences
Thus far, opponents of religious freedom bills have focused on how these bills might legalize discrimination on the basis of sexual orientation. Many cite the example of a bakery’s refusal to sell a cake to a gay wedding, while others suggest that medical workers could decline to treat gay individuals, even in the event of an emergency.
However, religious freedom bills may have other far-reaching and unintended consequences. The Arizona Small Business Association suggests that SB 1062, if passed, would have allowed employees, not solely business owners, to deny customers on the basis of their own religious preferences. Jerry Bustamante, the Arizona Small Business Association’s vice president for public policy, stated that “SB 1062 would have shifted the balance of control from the business owner to employees, who could decide to refuse someone’s business based on their own personal religious beliefs and not those of the business owner.”
Groups like the ACLU fear that businesses and individuals may be able to avoid complying with any law by using the excuse of religious freedom. Eunice Rho, an ACLU advocacy and policy counsel, stated, “[The RFRA] basically opens up a legal challenge to every policy or law on the book unless the law specifically says otherwise.”
Another example of how religious freedom bills can lead to unintended consequences is a case of alleged forced child labor on a pecan farm run by a Mormon sect. Vergel Steed, one of the church’s members, managed to dodge a Department of Labor investigation by claiming that disclosing information about his church would breach religious vows. In September 2014, U.S. District Judge David Sam cited Burwell v. Hobby Lobby to rule in favor of Steed. Yet similarly to SB 1062 and other RFRA bills, Hobby Lobby was initially intended to prevent the state from infringing upon religious freedom. Harvard philosophy and theology professor David Lamberth informed the HPR that “Justice Alito tried to say very clearly in the Hobby Lobby case that this was a very limited decision. But when you combine the ruling with the move to see corporations as having as much scope as they do, it raises questions about how the free exercise of religion might interfere with non-discrimination.”
But RFRA advocates argue that overzealous interpretation of religious freedom legislation is not a threat. Jordan Lorence, a senior counsel for the Alliance Defending Freedom, a conservative organization dedicated to Christian advocacy, stressed to the HPR that the government uses a stringent “four-part filter” to restrict religious freedom legislation: “First, [the proprietor] would have to have a sincere religious belief. Then, the government must substantially burden their free exercise of religion. Finally, the government can [still] prevail if they show step three, that there is a compelling government interest, and step four, that the policy was done in the least restrictive means.”
Lorence argued that winning religious exemption from the law requires business owners to meet an extremely high threshold. “It isn’t just utter chaos and people excusing themselves from the law,” he said. “Every governmental interest, no matter how trivial, always trumps a request for religious exemption.” In addition, he claimed that the impact on LGBTQ individuals would be minimal and stated that he had “never heard of a proprietor asserting that they would become ‘unclean’ if they came into contact with a gay or lesbian person.”
Yet even if RFRA proponents suggest that discrimination is rare, it remains a valid concern. For example, Elane Photography, a small business in New Mexico, refused to photograph a wedding ceremony for a lesbian couple in 2006. Lorence, who represented Elane Photography in its discrimination case, argued that “the government simply cannot compel speech, even if it’s a wonderful thought that everyone agrees with.”
To be sure, Elane Photography did not simply refuse service to LGBTQ individuals; rather, the owners did not want to be compelled to photograph an event that contradicted their religious beliefs. Furthermore, Lorence said, “In these photographer cases, where there’s probably one out of a hundred photographers who might object to promoting the ideas and concepts of a same-sex wedding ceremony, there are another ninety-nine eager to take the job. This is far cry from the situation in the segregated South, for example, where discrimination was systematized.” Nevertheless, in the end, LGBTQ individuals were denied services based on fundamental characteristics of their personal identities.
The “Right” Kind of Liberty
The situation is further muddied when RFRA proponents accuse civil rights advocates of practicing reverse discrimination. Lorence referenced a hairdresser who used to work for New Mexico Governor Susana Martinez but refused to do her hair once she publicized her opposition to same-sex marriage. “Waiters and waitresses were motivated by Antonio’s example, claiming that if Susana were to eat a meal at their restaurants, they’d refuse to serve her because of her political views,” Lorence told the HPR. “Now who is operating more like a segregated lunch counter?” It is difficult to determine to what extent civil rights advocates can protest religious freedom bills before their actions become somewhat contradictory. Lorence continued with another anecdote about a photographer who refused to take pictures of the head of the Alliance Defending Freedom and his family, citing disagreements with organization’s values. “To me, this is essentially the same thing that happened with Elane Photography,” Lorence argued.
If individuals insist on refusing service to advocates of religious freedom bills, then these individuals are at risk of being criticized for practicing reverse discrimination. Thus, the religious freedom debate is both dangerous and powerful, because it has the potential to break our nation’s very notion of freedom, discrimination, and religion right down to their cores. The debate questions the very legitimacy whether citizens in a democratic society are free to hold and act on beliefs inherently hostile to other citizens.
Interestingly enough, in regions of Arizona outside Phoenix, Tucson, and Flagstaff, business owners are already permitted to refuse service to LGBTQ individuals, as Arizona’s public accommodation laws currently protect individuals against discrimination due to race, national origin, sex, gender, religion, and disability only—sexual orientation is not mentioned. So why the recent fury over religious freedom bills such as SB 1062 and cases like Hobby Lobby, specifically?
Lamberth postulated that perhaps civil rights advocates are more concerned with what recent legislation represents and what direction it could lead the national debate on religion. Looking forward, the future of the religious freedom debate remains fiercely contested and yet unresolved. “The very claim that Hobby Lobby is a limited decision implies that the bigger question isn’t really settled,” Lamberth explained. “There’s a debate over whether Congress meant in 1993 [with the federal Religious Freedom Restoration Act] to set aside jurisprudence from the free exercise clause, or to clarify it. And the Justices actually disagreed on that. It leaves us in a place where we’re not very well settled.”
This article has been updated from an earlier version (2/24/15).
Image source: Kelly Huston/Flickr