Plenty of us are rightly concerned about these "religious freedom" laws being passed in state after state, modeled after the federal Religious Freedom Restoration Act (RFRA) that was the basis for the Supreme Court's ... ahem, controversial Hobby Lobby decision. By all appearances, these laws are an attempt by legislatures to create a right to discriminate, on "religious freedom" grounds, against anyone who it might otherwise be illegal to discriminate against. And we all know who they're looking at, and why.
It's important to remember that Hobby Lobby, whatever you think of the ruling, was based on RFRA, not grounded in the Free Exercise clause of the First Amendment, which has never been held to be an excuse or justification for unlawful behavior, viz., for violating the rights of and/or inflicting legal injury on others. What's even more important, for the purposes of this diary, is that the underlying statute at issue there -- the Affordable Care Act -- was not an anti-discrimination statute.
At issue here is whether an anti-discrimination statute, i.e., one that forbids retail merchants from discriminating against customers on the basis of (inter alia) sexual orientation, would be trumped by a RFRA-type law in the same jurisdiction. Bearing in mind that we're talking about retail, i.e., goods and services that are openly, freely, universally and unconditionally offered for sale to the general public, that anyone and everyone has a right to come in and accept on the same terms as everyone else; would a RFRA-type law provide an excuse or justification for withdrawing that offer from certain customers post-acceptance, on "religious" grounds? In other words, would it provide a complete, standalone defense to a discrimination lawsuit?
[Please look here for a primer on how anti-discrimination laws work and are enforced. Then proceed below the fold for discussion of how RFRA might impact the enforcement of such laws.]
What these RFRA-type laws basically do, or try to do, is to take the shield that is "religious liberty" and either add or replace it with a sword. They don't make discrimination legal per se, just as anti-discrimination statutes don't make discrimination illegal per se. What they do is shuffle the burden of proof around as to who has to prove what, in what order and by what standard, in order for there to ultimately be a finding of liability for discrimination in a particular case.
A merchant who discriminates against anyone is, in doing so, only risking a civil lawsuit. It's up to the customer to decide whether he should and will enforce his legal right to equal treatment by taking the merchant to court. If he does, then the statutes become operative. The anti-discrimination statute creates the cause of action and certain evidentiary presumptions. Although laws modeled on the federal RFRA do not create or provide for an affirmative defense to that cause of action (or private civil lawsuits generally), some state RFRAs being proposed seem to at least imply that they do that. Accordingly, RFRA-type laws should be of concern to everyone for this reason alone, as they would empower and embolden merchants to discriminate more than they otherwise might by reducing the risk, real or perceived, of a successful lawsuit.
Anti-discrimination statutes -- specifically, those that proscribe discrimination on the basis of protected characteristics in the retail/commercial/public-accommodation context -- have never been subjected to a RFRA-type analysis, at least not by the Supreme Court. Meaning, a discrimination plaintiff/victim has never had a discrimination lawsuit against a retail merchant dismissed on RFRA grounds and then appealed the dismissal, nor has a retail merchant lost a discrimination lawsuit and appealed it on RFRA grounds. Neither has anyone directly challenged an anti-discrimination statute or ordinance as a violation of RFRA. The cases we've seen so far involving bakers and photographers and what-not were decided based on state and local anti-discrimination statutes or ordinances, which in the absence of RFRA-type laws could not be overcome by claims of "religious liberty." (Hence the recent adoption and consideration of RFRA-type laws in the states.)
As noted, RFRAs typically do not create affirmative defenses to civil lawsuits; they create a private right of action against the state and/or governmental entities. Even if a merchant could invoke a RFRA as an affirmative defense to a discrimination lawsuit (or, e.g., implead the state as a third-party defendant), he would have to demonstrate that the statute or ordinance in question (i.e., the one the merchant is accused of violating) places a "substantial burden" on the "exercise of" his purported "religious belief." The authenticity or sincerity of that "belief" is not an issue and is, really, not to be questioned, but it's also irrelevant. What's important is that the law in question be directed at something other than a specific religion, religious "belief" or set of "beliefs," or "exercise" thereof. Neutral laws of general applicability that only incidentally burden religious "belief" or "exercise" are not trumped by "religious liberty," nor can they violate a RFRA-type law.
The Supreme Court has only ever found one law -- a local ordinance in Hialeah, Florida banning animal sacrifice, which was being practiced locally by adherents of the west-African/Cuban Santeria faith -- to have been passed with the intent to burden a specific religion or belief, an intent which the municipality expressly disclaimed and denied in its legislative history and in oral argument before the Court. See Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (hereinafter "Lukumi"). To my knowledge the Court has never found -- and has never been asked to find -- an anti-discrimination statute of the type at issue here to have been passed with similar intent.
So, the question is, could a court find that an anti-discrimination statute or ordinance banning commercial discrimination against LGBT persons, was passed by the legislature with the intent of burdening or expressly condemning a particular religious belief?
Generally speaking, it's fairly well-established why legislatures proscribe retail/commercial discrimination, and it's not to publicly shame, condemn or punish discriminators or make them feel bad about their "beliefs" -- it's to protect the potential, predictable and actual victims of such discrimination from economic harm, even if the legal injury is only nominal. (Discrimination in the retail/commercial context is per se harmful, in the sense that it causes at least nominal legal injury, if not actual economic loss.) If a legislature has reason to believe that discrimination against LGBT persons -- irrespective of by whom and on what basis -- is or will become a problem, then that, and not animus against "religious beliefs," is the basis for the law.
Hobby Lobby did not, as mentioned above, involve an anti-discrimination statute, let alone one that addresses retail commerce or public accommodation. It may be partially instructive on this issue, if only to the extent that it might allow the discriminatory treatment so long as the customer can be accommodated, something that was essentially already true before Hobby Lobby and that that case didn't really change. More importantly, though, Hobby Lobby challenged an administrative regulation, not the Affordable Care Act itself; it was the administrative agency (HHS), not the law, that purportedly imposed the "substantial burden" on the corporation's "exercise of religion." Hence the question of whether the ACA itself was passed with the intent of burdening religious liberty or condemning certain religious beliefs never came up in that case, and it is therefore not instructive on the "substantial burden" issue vis-à-vis state and local anti-discrimination laws.
One thing, I think, that everyone on both "sides" of this issue has to realize, is this: There is not now, has never been, and never will be, an anti-discrimination statute or ordinance in any U.S. jurisdiction whose passage comes anywhere close to having been solely or even primarily motivated by or based on a legislature's hostility to religion or disapproval of certain religious "beliefs." No such law is currently being considered, contemplated, proposed, suggested, supported or advocated by anyone, anywhere. General proscriptions of commercial discrimination against LGBT persons do not meet that criterion.
The only way an anti-discrimination law of this type could fail to direct itself at something other than mere disapproval of religion or religious "beliefs" would be if it narrowly, specifically and discretely targeted, e.g., "Christian" merchants and forbade them from refusing to provide certain goods or services in some narrow, specific, discrete commercial context like "same-sex marriage ceremonies." Anything less specific than that would probably not be enough to invoke RFRA, and there is no law on the books or under consideration anywhere by anyone that is even close to being that specific, or to targeting religious people or "beliefs" that way. It's nigh impossible to imagine any municipality passing such a law. Moreover, the fact that a Christian vendor/gay wedding situation might be subsumed by a broader, neutral, general anti-discrimination statute would not have the effect of rendering that statute solely or primarily motivated by the state's desire to publicly shame and condemn religious people or their "beliefs." It's nigh impossible to imagine a competent court finding that it does.
As noted above, the law that the Supreme Court struck down in Lukumi -- the only law that's ever been held to be motivated solely by the government's distaste for or disapproval of a specific religious "belief" or "exercise" -- was a local ordinance banning animal sacrifice, which inter alia is a specifically and explicitly religious ritual that was being practiced in that particular place at that particular time by people of one particular faith. The town argued that the ordinance was directed not at the Santeria religion or its adherents but at "public health" and "public morality;" the Court did not accept that.
Now, there is of course a HUGE difference between animal sacrifice and commercial discrimination against gay people as something the law might want to proscribe. It's not even a matter of whether either one constitutes "religious exercise," which I'm not even going to get into here. Hialeah banned animal sacrifice because the Santerias were practicing it and the town and its citizens were bothered by it; if the Santerias hadn't been doing it, there would have been no call or reason for the town to ban it. But more importantly, animal sacrifice -- apart from maybe being gross and cruel to animals, which I also don't want to discuss, thank you PETA folks -- is nothing more than a religious ritual; it doesn't really hurt anyone or put other people at risk of economic harm.
The point with respect to Lukumi is that while the Supreme Court might have been willing to countenance cruelty to animals in the name of "religious liberty," I highly doubt it or any lower courts would be willing to countenance cruelty to people under the same rubric. Which brings us back to the same place we started, which is that anti-discrimination laws are invariably directed at protecting the victims of discrimination, not condemning the motivations of discriminators.
In the end, I think these RFRA-type laws are an attempt to create a license to discriminate, but one that is ultimately doomed to fail. Which is not to say they won't cause some pain and hardship along the way, another unfortunate historical episode of We Don't Serve Your Kind Here, which is absolutely cause for concern right now. Yet even if some right-wing trial judge in some podunk jurisdiction gets this wrong, the law is never ultimately going to come down on the side of, "Yes, it's OK to treat people like shit."