Ethics & Public Policy Center

Non-Discrimination Principles Versus Civil Liberties

Published in United States Commission on Civil Rights on March 1, 2013



Testimony of Edward Whelan

Submitted March 1, 2013

United States Commission on Civil Rights

Hearing on “Peaceful Co-Existence? Reconciling Non-Discrimination Principles with Civil Liberties”

March 22, 2013

Thank you for inviting me to testify before this Commission on the important topic of the conflict between non-discrimination principles and civil liberties.

I offer my views in my capacity as president of the Ethics and Public Policy Center and as director of EPPC’s program on The Constitution, the Courts, and the Culture. I am testifying on my own behalf, and my statements are not to be imputed to EPPC as an institution.

I

The title of this hearing asks whether non-discrimination principles and civil liberties can peacefully co-exist. I respectfully submit that, by its very nature, the imposition of a non-discrimination principle on nongovernmental actors intrudes, at least to some degree, on civil liberties. At the simplest level, the embodiment in law of the principle that, in performing lawful Action A–say, providing a service or hiring an employee–a person should not discriminate on the basis of Category X means that the person no longer has the full liberty to perform Action A as she pleases.

As I trust is obvious, this elementary observation says nothing about whether the imposition of a particular non-discrimination restriction on how a person performs a particular type of action is justified. Nor does it speak to whether the resulting intrusion on liberty is trivial or significant. It merely points out the inevitable conflict.

As a guide to thinking through whether and when non-discrimination principles ought to apply, I offer these considerations:

1. Traditional liberalism distinguishes between the rules that the government must follow and the rules that apply to the conduct of ordinary citizens. It is one thing to impose a regimen of “fair” conduct on the government and on governmental actors, which do not have any countervailing civil liberties at stake. It is a very different matter to impose the same regimen on ordinary citizens, whose civil liberties include religious liberty, free speech, freedom of association, and a general autonomy to act, within broad bounds, as they see fit, without interference from the government.

The flourishing of civil society depends on recognizing and respecting this distinction between the norms applicable to the government and the norms applicable to the citizenry. By contrast, the failure to recognize and respect this distinction leads to what one critic has fairly labeled “totalitarian liberalism”–a liberalism that seeks to occupy the totality of human affairs and that “tends to imply that institutions such as the family, the Church, and other agencies exist only with the permission of the state, and, to exist lawfully, must abide by the dictates or norms of the state.” Philip Tartaglia, “At the Door of the Temple: Religious Freedom and the New Orthodoxy,” Public Discourse (June 27, 2012).

2. “That’s discrimination!” seems to have become for many Americans an observation that stifles more careful thinking about what line-drawing is legitimate and about the proper limits on the application of non-discrimination norms. But, as law professor Richard W. Garnett points out, “discrimination” is “just another word for decision-making, for choosing and acting in accord with or with reference to particular criteria.” Richard W. Garnett, “Confusion About Discrimination,” Public Discourse (Apr. 5, 2012). Thus, we speak approvingly of someone with “discriminating tastes”–someone, that is, who values the true, the good, and the beautiful over the false, the bad, and the ugly.

A threshold question (a necessary but not sufficient condition) in deciding whether to adopt a norm of nondiscrimination is whether and when a particular form of discrimination is wrongful or invidious.

3. The paradigmatic case of a wrongful basis of discrimination is race. We abhor discrimination on the basis of race because we recognize that a person’s race does not detract from (or add to) his stature as a being made in the image and likeness of God or (in more secular terms) his equal dignity as a human being. We especially abhor racial discrimination against African-Americans because we recognize, and grieve over, our nation’s ugly legacy of slavery and of state-enforced racial segregation.

It is worth emphasizing, however, that our legal system’s condemnation of discrimination on the basis of race is far from absolute. In particular, under the rubric of “affirmative action,” our legal system currently allows and encourages racial discrimination, both by the government and by private actors, against non-Hispanic whites and against Asian Americans in educational admissions and against non-Hispanic whites in employment. To a much lesser extent, there are some job assignments–e.g., an FBI agent infiltrating a group of racist terrorists–for which race may well be regarded as a permissible criterion.

My point at this hearing is neither to defend nor dispute these departures from the norm of non-discrimination on the basis of race, but merely to highlight that our legal system’s ban on racial discrimination has some significant exceptions.

4. Other bases of discrimination commonly prohibited under federal law are qualitatively different from race.

Take sex, for example. For various reasons, we regard sex-segregated restrooms, sex-segregated athletic competitions, and single-sex schools very differently from race-segregated restrooms, race-segregated athletic competitions, and single-race schools. Most of us don’t disapprove of a woman who wants to be part of a women-only book club or of a boy who wants to join the Boy Scouts.

If the increasingly common disparagement of traditional religious believers is any indication, it would also seem that, for many Americans, discrimination on the basis of religion does not carry the same moral stigma as discrimination on the basis of race. The fact that a person is free to choose and change her religious beliefs in a way that she is not free to change her race may well account for some of the difference. But a growing hostility against traditional religion would also seem an important factor.

5. Insofar as the social attitudes that sustained invidious discrimination have evolved, prohibitions on discrimination may be a very costly way of achieving very little. Employers, for example, will generally harm themselves when they engage in irrational discrimination. Thus, as one leading scholar puts it, “Competitive markets with free entry offer better and more certain protection against invidious discrimination than any anti-discrimination law.” Richard Epstein, Forbidden Grounds: The Case Against Employment Discrimination Laws 9 (Harvard University Press 1992). Similarly, thanks in part to advances in technology, customers for goods and services enjoy an increasingly broad range of available providers and incur much lower search costs in choosing among providers.

Further, as many scholars have argued, prohibitions on discrimination may well have unintended consequences that undermine their objectives. For example:

By making it harder to fire certain workers, employment discrimination law tends to make these workers less attractive prospects at the hiring stage. An employer would prefer to hire someone who can be easily fired (should that prove necessary) than an otherwise identical applicant whose firing would be subject to legal scrutiny. Thus, protection against discriminatory firing acts as a kind of tax on hiring those to whom it is extended.

Ian Ayres & Peter Siegelman, “The Q-Word as Red Herring: Why Disparate Impact Liability Does Not Induce Hiring Quotas,” 74 Tex. L. Rev. 1487, 1487-1488 (1996).

II

I do not contend that it is a simple or uncontroversial matter to translate the general considerations that I have outlined into a set of non-discrimination norms, and I will not attempt to do so here. Instead, I would like to explore more concretely the clash between non-discrimination principles and civil liberties. Let’s look at a real-life case:

Elaine Huguenin and her husband Jonathan own Elane Photography, a business providing photography services, in Albuquerque, New Mexico. Elane Photography has a policy against photographing events that communicate messages inconsistent with the Huguenins’ Christian beliefs. In 2006, Ms. Huguenin received an e-mail from a potential customer, Vanessa Willock, inquiring about photography for Ms. Willock’s upcoming same-sex commitment ceremony. Ms. Huguenin informed Ms. Willock that Elane Photography would not provide the service.

Ms. Willock then filed a discrimination claim with the New Mexico Human Rights Commission. That agency found that Elane Photography had violated state law by discriminating on the basis of sexual orientation, and it ordered Elane Photography to pay Ms. Willock more than $6,600 in attorney fees and costs. More than six years later, Elane Photography’s appeal of that order is now pending before the New Mexico supreme court.

Let’s consider at the same time a hypothetical variant:

Assume now that the owner of the photography business is a gay man, John Doe, who will photograph same-sex commitment ceremonies but who refuses to photograph male-female weddings. Mr. Doe therefore informs a potential customer, Jane Poe, that he won’t photograph her wedding. Ms. Poe files a discrimination claim with the New Mexico Human Rights Commission, which finds that Mr. Doe violated state law by discriminating on the basis of sexual orientation and which orders him to pay Ms. Poe more than $6,600 in attorney fees and costs.

Do these results make any sense? Consider:

1. As First Amendment expert Eugene Volokh has explained, event photography “involves a substantial degree of artistic judgment and expression on the photographer’s part,” and the photographer’s creative expression is protected by the First Amendment. Further, “the right to be free from compelled speech includes the right not to create First-Amendment-protected expression … that you disagree with.” Eugene Volokh, “Wedding Photographer May Be Required (on Pain of Legal Liability) to Photograph Same-Sex Commitment Ceremonies,” Volokh Conspiracy (June 4, 2012). In other words, both Elane Photography (and the Huguenins) and the hypothetical John Doe have a strong free-speech claim under the First Amendment to discriminate, on the basis of sexual orientation or on other bases, against potential customers for whom they would prefer not to exercise their expressive capacities.

2. Elane Photography’s policy against photographing same-sex commitment ceremonies reflects the religious beliefs of its owners, the Huguenins. Whether or not the Huguenins have an enforceable religious-liberty right (under the Free Exercise Clause of the First Amendment, under New Mexico’s Religious Freedom Restoration Act, or under some other provision of law), there can be no question that imposing on them an obligation to photograph same-sex ceremonies intrudes on their religious beliefs.

The same, of course, might well be true for Mr. Doe–if, that is, his own practice is driven by his religious beliefs.

3. No sensible person seeking artistic photographic services for an event would want a photographer who is hostile to the event. The potential customers, Ms. Willock and Ms. Poe, would likely have been worse off if the photographers had concealed their objections and grudgingly provided their services. Because there are alternative providers of photography services, the customers were instead able to find willing and able substitutes.

4. To be sure, in addition to the trivial inconvenience of an e-mail exchange, Ms. Willock and Ms. Poe each incurred what might be called the dignitary injury of being told that the photographer had a policy against photographing her event. But in our pluralistic society, it should be no surprise that nearly everyone will be disapproved of by some of the people some of the time. As a general rule, it is difficult to see how the desire to avoid encountering disapproval would justify imposition of a regime in which customers dragoon unwilling providers rather than a regime in which customers obtain the services they want from willing providers. It is also difficult to see why it is better to reward thin-skinned plaintiffs for running to court (or, even worse, to a “human rights commission”) than to encourage the healthy growth of thicker skin.

III

In his famous Memorial and Remonstrance of 1785, James Madison celebrated that the “American Theatre” had discovered the “true remedy” for the “disease” of “Religious discord” that had so afflicted the “old world” of Europe: “equal and compleat” religious liberty. In a warning that resonates across the centuries, Madison declaimed: “If with the salutary effects of this system [of “equal and compleat” liberty] under our own eyes, we begin to contract the bounds of Religious freedom, we know no name that will too severely reproach our folly.”

The clash between non-discrimination principles and religious liberty in particular has been exacerbated by the Obama administration’s hostility to a robust conception of religious liberty and by its determination to subordinate religious liberty to its ideology of sexual absolutism. The so-called HHS contraception mandate provides a prime example.

In implementing President Obama’s signature health-care legislation, the Department of Health and Human Services announced in January 2012 that it will require many employer-provided health-insurance plans to include in the preventive services that they cover all FDA-approved forms of contraception, including those contraceptives that sometimes operate as abortifacients, and sterilization services. For those employers who have religious objections to providing some or all of the mandated coverage, this HHS contraception mandate clearly violates their rights under the 1993 federal Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause of the First Amendment. Even worse, it displays an illiberal contempt for the religious views of those whom it seeks to coerce.

The case against the HHS mandate under RFRA is quite simple. Under RFRA, the federal government “may substantially burden a person’s exercise of religion only if it demonstrates that applica­tion of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” Let’s consider the italicized elements in logical order.[1]

It is clear that an employer is engaged in an exercise of religion when she, for religious reasons, refuses to provide health insurance that covers contraceptives or abortifacients. RFRA itself defines exercise of religion broadly to mean “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Further, RFRA was adopted against a backdrop of prominent Supreme Court cases in which the exercise of religion consisted of abstentions like not working on the Sabbath (Sherbert v. Verner (1963)), not sending one’s children to high school (Wisconsin v. Yoder (1972)), and not taking part in the production of armaments (Thomas v. Review Board (1981)).

It is equally clear that the HHS mandate substantially burdens objecting employers’ exercise of religion. An employer who violates the HHS mandate incurs an annual penalty of roughly $2000 per employee–vastly more than the five-dollar fine that substantially burdened the religious rights of the fathers in Yoder who refused to send their children to high school. Under the Supreme Court case law that RFRA incorporates, that penalty for noncompliance with the HHS mandate puts the same kind of burden on religious rights as a direct fine for holding religious beliefs against contraceptives or abortifacients.[2]

The question whether the government can demonstrate that application of the burden to the objecting employer is in furtherance of a compelling governmental interest involves a more complicated analysis, but the answer in the end is clearly no. For starters, by HHS’s own account, there is already widespread access to contraceptives, via pre-existing employer-based insurance plans, community health centers, and public clinics (as well as the countless pharmacies and doctors who dispense contraceptives). No one can seriously maintain that there is a general problem of lack of access to contraceptives. Just as the Supreme Court has recently declared that “the government does not have a compelling interest in each marginal percentage point by which its goals are advanced,”[3] it surely does not have a compelling interest in each marginal employer by which its goal of increased provision of contraceptives is advanced.

Indeed, the Obama administration effectively concedes this point by exempting so many employers from the HHS mandate for purely secular reasons. For example, employers offering so-called “grandfathered” plans, estimated to cover nearly 100 million Americans in 2013, are not subject to the HHS mandate. Nor are the many businesses which employ fewer than 50 full-time employees and which decline to provide them group health insurance. It is absurd for anyone to contend that the Obama administration has a compelling interest in imposing the mandate on objecting religious employers when it obviously perceives no such interest in imposing it on all these other employers.

The HHS mandate also clearly flunks the least restrictive means test. (In order to satisfy RFRA, it would have to meet both the compelling governmental interest test and the least restrictive means test.) The question under this test is whether imposing the HHS mandate on an employer who has religious objections to providing insurance coverage for contraceptives or abortifacients furthers the government’s interest in increasing access to contraceptives via the means that is least restrictive of the religious liberty of the objecting employer.

The question virtually answers itself. There are lots of alternative means by which the government could increase access to contraceptives without conscripting objecting employers: for example, direct government provision of contraceptives, government payment to third-party providers, mandates on contraceptive providers, and tax credits or deductions or other financial support for contraceptive users. Instead of pursuing any of these alternatives, the Obama administration has adopted the single means that is most restrictive of the religious liberty of objecting employers.

The HHS mandate also violates the Free Exercise Clause. The HHS mandate is not neutral and generally applicable, and therefore does not qualify for the low bar of Employment Division v. Smith, because (as I discuss above) employers are exempt from it for purely secular reasons.[4] The HHS mandate is therefore subject under the Free Exercise Clause to the same standard that RFRA imposes, and it fails for the same reasons.

Even more troubling than the Obama administration’s violations of RFRA and the Free Exercise Clause is the fact that its conduct was willful and deliberate. Before it finalized the HHS mandate, the administration received thousands and thousands of comments explaining the impact that the mandate would have on employers who had religious objections to providing insurance coverage for contraceptives or abortifacients. Without conducting any review of the legality of the mandate under RFRA and the First Amendment, the administration bulldozed ahead. At the very least, it did so despite the mandate’s impact on objectors. But there is ample reason to believe that the Obama administration found it desirable to trample the consciences of many Americans, as the HHS mandate is part of a broader pattern of the Obama administration’s hostility to religious liberty and of its determination to subordinate religious liberty to its ideology of sexual absolutism. For example:

  • In the international arena, the administration has reduced religious liberty to a shriveled concept of individual religious worship and has instead aggressively promoted its LGBT initiative at the expense of religious liberty. See, e.g., Thomas F. Farr, “Religious Freedom Under the Gun,” Weekly Standard, July 16, 2012.
  • In Hosanna-Tabor Evangelical Lutheran Church v. EEOC (2012), the Department of Justice contested the very existence of a “ministerial exception” to federal anti-discrimination laws, despite the fact that that exception had been uniformly recognized by the federal courts of appeals. According to the Obama Department of Justice, religious organizations, in selecting their faith leaders, are limited to the same freedom-of-association right that labor unions and social clubs have in choosing their leaders. At oral argument, even Justice Kagan called DOJ’s position “amazing,” and in its unanimous ruling the Court emphatically rejected DOJ’s “remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.”
  • Despite the fact that its own independent review board ranked the U.S. Conference of Catholic Bishops far above other applicants for a grant to assist victims of human trafficking, HHS political appointees denied the grant because USCCB won’t refer trafficking victims for contraceptives and abortion. See Jerry Markon, “Health, abortion issues split Obama administration and Catholic groups,” Washington Post, Oct. 31, 2011.
  • Against the backdrop of an escalating clash between gay rights and religious liberty, the Obama administration irresponsibly abandoned its duty to defend the federal Defense of Marriage Act. When President Obama finally cast aside his professed opposition to redefining marriage, he opened the way for an intensification of the vitriolic attacks on traditional religious believers (and others) who continue to hold the position that he had so recently claimed to embrace.

The administration’s hostility to religious liberty is part of its broader “progressive” vision. In that vision, the moral propositions associated with traditional religious beliefs are dismissed as irrational and bigoted, and religious institutions and believers are deemed to have value, and to be tolerated, only insofar as they serve the interests of the state and conform themselves to its norms. In the progressive dystopia, in the name of diversity everyone must be the same.

By dragooning employers to be the vehicle for increasing access to contraceptives and abortifacients, the Obama administration is putting many Americans to a grave test of conscience–and it is doing so gratuitously, for an end that could be easily accomplished through other means. The American tradition of broad religious liberty has operated to minimize the instances in which Americans have understood their religious identities and duties to be in conflict with their identities and duties as citizens. But in defiance of Madison’s warning, President Obama has chosen to “contract the bounds of Religious freedom” of those who object to providing coverage for contraceptives or abortifacients.

As Madison would recognize, the HHS mandate is a folly that deserves the severe reproach of all Americans.

IV

The spread of same-sex marriage also threatens to sharply exacerbate the conflict between nondiscrimination policies and religious liberty.[5]

A scholarly consensus has emerged that the redefinition of marriage to include same-sex couples will generate widespread clashes between existing laws that bar discrimination on the basis of sex/gender, marital status, or sexual orientation (most of which were never designed to reach claims by parties to same-sex marriages) and religious liberty. See, e.g., Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Douglas Laycock, Anthony R. Picarello Jr. & Robin Fretwell Wilson eds. 2008).

An episode just two weeks ago illustrates the potential severity of that clash: Responding to complaints that a civil-unions bill failed to provide any meaningful protection for religious objectors, Colorado state senator Pat Steadman displayed his contempt for religious liberty by declaring:

“So, what to say to those who say religion requires them to discriminate. I’ll tell you what I’d say. Get thee to a nunnery and live there then. Go live a monastic life away from modern society, away from people you can’t see as equal to yourself, away from the stream of commerce where you may have to serve them.”

Vincent Carroll, “Civil unions or a nunnery? Please,” Denver Post, Feb. 13, 2013.

A

Unless robust protections for religious liberty are adopted and maintained, religious people and institutions will face a wave of private civil litigation under anti-discrimination laws. Consider, for example, the litigation that can reasonably be threatened under public-accommodation laws, housing-discrimination laws, and employment-discrimination laws.

Public-accommodation laws. Religious institutions often provide a broad array of programs and facilities to their members and to the general public, such as hospitals, schools, adoption services, and marital counseling. Religious institutions have historically enjoyed wide latitude in choosing what religiously motivated services and facilities they will provide, and to whom they will provide them. This wide latitude has both protected liberty of conscience and maximized the number of organizations that can provide for the needs of society. But giving legal recognition to same-sex marriage without robust conscience exemptions will restrict that freedom in at least two ways.

First, most states include gender, marital status, or sexual orientation as protected categories under public accommodation laws.[6] Second, religious institutions and their related ministries are facing increased risk of being declared places of public accommodation, and thus being subject to legal regimes designed to regulate secular businesses. For example, some laws require church halls be treated as public accommodations if they are rented to non-members.

This risk is greatest for those religious organizations that serve people with different beliefs. Unfortunately, the more a religious organization seeks to minister to the general public (as opposed to just co-religionists), the greater the risk that the service will be regarded as a public accommodation giving rise to liability.

Some of the many religiously motivated services that could be subjected to public accommodation laws are health-care services, marriage counseling, family counseling, job training programs, child care, gyms and day camps, life coaching, schooling, adoption services, and the use of wedding ceremony facilities.

Religious business owners face the same risks, as my discussion of Elane Photography illustrates.

Housing-discrimination laws. Religious colleges and universities frequently provide student housing and often give special treatment to married couples. Legally married same-sex couples could reasonably be expected to seek these benefits, but many religious educational institutions would conscientiously object to providing similar support for same-sex unions. Housing discrimination lawsuits would result.

Under federal law, gender discrimination in housing is prohibited. See 42 U.S.C. §3604. There are some limited exemptions for religious institutions, see 42 U.S.C. §3607, but they would not automatically cover all conflicts triggered by legal recognition of same-sex marriage–and determining their scope would require costly litigation. Similarly, state and local housing laws ban discrimination on the basis of gender, marital status, and sexual orientation–and the religious exemptions are also limited.

In several states, courts have required landlords to facilitate the unmarried cohabitation of their tenants, over strong religious objections. If unmarried couples cannot be discriminated against in housing due to marital status protections, legally married same-sex couples would likely have even stronger protection.

Employment-discrimination laws. Religious organizations that object to same-sex marriage may also face private lawsuits when one of their employees enters into a civilly-recognized same-sex marriage. For many religious institutions, an employee’s entering a same-sex marriage would constitute a public repudiation of the institution’s core religious beliefs in a way that less public relationships do not. Some employers will respond by changing the terms of employment for those employees. These employees may then sue under laws prohibiting gender, sexual orientation, or marital status discrimination in employment. If the employee is a “minister,” or the relevant statute includes an exemption, then the defendant religious employer could raise an affirmative defense. But where the employee does not qualify as a minister and no legislative exemption is in place, the employer will be exposed to liability for any alleged adverse employment action.

Moreover, if same-sex marriage is adopted without protections, religious employers who provide insurance for spouses of employees may be automatically required to provide insurance for all legal spouses–both opposite-sex and same-sex–to comply with anti-discrimination laws. Thus, after the District of Columbia passed a same-sex marriage law without strong conscience protections, the Catholic Archdiocese of Washington saw no choice but to stop offering spousal benefits to any of its new employees.

B

Adoption of same-sex marriage will also subject religious people and institutions to a variety of penalties imposed by the federal, state, and local governments:

Exclusion from government facilities and fora. Religious institutions that object to same-sex marriage will face challenges to their ability to access a diverse array of government facilities and fora. This is borne out in the reaction to the Boy Scouts’ requirement that members believe in God and not advocate for, or engage in, homosexual conduct. Because of this requirement, the Boy Scouts have had to fight to gain equal access to public after-school facilities.[7] They have lost leases to city campgrounds and parks,[8] a lease to a government building that served as their headquarters for 79 years,[9] and the right to participate in a state-facilitated charitable payroll deduction program.[10] All of this has happened despite the Supreme Court’s decision in Boy Scouts v. Dale (2000) recognizing that the Boy Scouts have a constitutional right, under the First Amendment, to maintain their policies. If same-sex marriage is adopted without robust protections for conscientious objectors, religious organizations that object to same-sex marriage could expect to face similar penalties, notwithstanding any constitutional rights that they may have.

Loss of licenses or accreditation. A related concern exists with respect to licensing and accreditation decisions. In Massachusetts, for example, Boston Catholic Charities, a large and longstanding religious social-service organization, faced the loss of its state license to operate as an adoption agency because it refused on religious grounds to place foster children with same-sex couples. Rather than violate its religious beliefs, Catholic Charities shut down its adoption services. This sort of licensing conflict would only increase after judicial recognition of same-sex marriage, since many governments would require all civil marriages to be treated identically.

Similarly, religious colleges and universities have been threatened with the loss of accreditation because they object to sexual conduct outside of opposite-sex marriage. In 2001, for example, the American Psychological Association, the accrediting body for professional psychology programs, threatened to revoke the accreditation of religious colleges that prefer co-religionists, in large part because of concerns about codes of conduct that prohibit sex outside of marriage and homosexual behavior. Where same-sex marriage is adopted without strong religious protections, religious colleges and universities that oppose same-sex marriage will likely face similar threats. And the same issue will also affect licensed professionals.

Disqualification from government grants and contracts. Religious universities, charities, hospitals, and social service organizations often serve secular government purposes through contracts and grants. For instance, religious colleges participate in state-funded financial aid programs, religious counseling services provide marital counseling and substance abuse treatment, and religious homeless shelters care for those in need.

Many contracts and grants require recipients to be organized “for the public good” and forbid recipients to act “contrary to public policy.” If same-sex marriage is recognized without specific accommodations for religious organizations, those organizations that refuse to approve, subsidize, or perform same-sex marriages could be found to violate such standards, thus disqualifying them from participation in government contracts and grants. For example, religious universities that oppose same-sex marriage could be denied access to government programs (such as scholarships, grants, or tax-exempt bonds) by governmental agencies that adopt an aggressive view of applicable anti-discrimination standards.

Religious organizations opposed to same-sex marriage also face the loss of government social service contracts. After the District of Columbia adopted same-sex marriage, Catholic Charities stopped providing foster care services for the city because it had to choose between continuing its program and violating its religious beliefs regarding the recognition of same-sex marriages. And in Illinois, a state court held that Catholic Charities was required to place children for adoption with couples in civil unions or forgo its annual contracts with the state. If same-sex marriage is given legal recognition without accommodation for religious objectors, many religious organizations will be forced either to extend benefits to same-sex spouses or to stop providing social services in partnership with government.

Loss of state or local tax exemptions. Most religious institutions have charitable tax-exempt status under federal, state and local laws. But without conscience protections, that status could be stripped away, based solely on a religious institution’s conscientious objection to same-sex marriage.Whether the First Amendment could provide an effective defense to this kind of penalty is an open question.

Loss of educational and employment opportunities. Individual religious believers would also face an array of penalties. In Vermont, individual town clerks may be fired if they seek to avoid issuing civil union licenses to same-sex couples for religious reasons, and at least twelve justices of the peace in Massachusetts lost their jobs because they could not facilitate same-sex marriages. The situation is particularly acute for state-employed professionals like social workers who face a difficult choice between their conscience and their livelihood.

Students in counseling programs at public universities face similarly stark choices. When Julea Ward, a Master’s in Counseling student in her final semester at Eastern Michigan University, told her professors that she had no problem counseling individual gay and lesbian clients but could not in good conscience assist them with their same-sex relationships, she was expelled for violating the school’s anti-discrimination policy. See Ward v. Polite, 667 F.3d 727 (6th Cir. 2012) (reversing grant of summary judgment against Ward on her First Amendment claims).

V

The sweeping application of non-discrimination principles poses an increasingly severe threat to civil liberties, especially to our first liberty of religious freedom. There is an urgent need to rethink when and how non-discrimination norms ought to apply and to provide robust protections for civil liberties.

 


[1] For a fuller version of the case I outline here, together with citations to supporting authorities, see my Notre Dame Law Review essay “The HHS Contraception Mandate vs. the Religious Freedom Restoration Act,” 87 Notre Dame L. Rev. 2179 (2012).

[2] There should be no dispute that making an exercise of religion illegal and subjecting it to massive fines imposes a substantial burden on that exercise of religion. But in muddled and convoluted reasoning, the minority of courts that, in addressing RFRA challenges to the HHS mandate on the merits, have rejected those challenges have purported to do so on the ground that the mandate does not impose a substantial burden. In reality, what those courts have done, in violation of governing Supreme Court precedent, is to impose their own views of the range of permissible religious beliefs about what constitutes improper complicity in immoral conduct and to disqualify the challenger’s exercise of religion from any protection under RFRA for being beyond that range.

[3] Brown v. Entertainment Merchants Ass’n, 564 U.S. 1, 16 n. 9 (2011). The Court’s statement might be better understood to mean that the government cannot be presumed to have a compelling interest in each marginal percentage point by which its goals are advanced. The difference is immaterial here.

[4] See, e.g., Ward v. Polite, 667 F.3d 727, 738 (6th Cir. 2012) (a rule is not neutral and generally applicable for purposes of Employment Division v. Smith if it is “riddled with exemptions” or “permit[s] secular exemptions but not religious ones”).

[5] With the permission of The Becket Fund for Religious Liberty, this part of my testimony draws heavily (including in extensive verbatim passages) from the amicus brief that it submitted in the pending marriage cases in the Supreme Court. See Brief Amicus Curiae of The Becket Fund for Religious Liberty, submitted in Hollingsworth v. Perry, No. 12-144, and United States v. Windsor, No. 12-307.

[6] See Appendix to Becket Fund Amicus, at 1a-101a (listing state laws).

[7] Boy Scouts of America v. Till, 136 F. Supp. 2d 1295 (S.D. Fla. 2001) (challenge to Boy Scouts’ use of school facilities).

[8] Evans v. City of Berkeley, 129 P.3d 394 (Cal. 2006) (equal access to boat berths denied to Scouts).

[9] Cradle of Liberty Council, Inc. v. City of Philadelphia, 851 F. Supp. 2d 936, 939 (E.D. Pa. 2012).

[10] Boy Scouts of Am. v. Wyman, 335 F.3d 80 (2d Cir. 2003) (Boy Scouts could be excluded from state’s workplace charitable contributions campaign).

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