In December, the Illinois legislature overrode Gov. Jim Edgar's attempt to force an exception for prisons. In the end, however, most people have decided that controls on frivolous lawsuits and universal recognition of the need for maximum discipline in prisons will take care of the concern voiced by Wilson and Edgar. Certainly that is the view of George W. Bush and his brother, Florida Gov. Jeb Bush, both of whom have tough-on-crime reputations yet support applying the compelling interest test across the board. It may be the only prison issue on which they agree with Ted Kennedy.
But on the question of discrimination, George W. Bush will have to part company either with Bill and Ted or with the religious right. Sooner or later, Bush and the other politicians will have to choose between two irreconcilable goals: accommodation of religious nonconformity and universal enforcement of anti-discrimination laws.
Unable to tolerate the intolerance of religious conservatives, the ACLU has recently jumped ship, abandoning what it once praised as a "simple and elegant" legislative restoration of traditional First Amendment doctrine. It now insists that laws like the Bush bill must guarantee that civil rights protection is always a compelling interest. The liberal group People for the American Way is still on board, but only by arguing that the courts on their own eventually will find that all forms of anti-discrimination law serve a compelling interest that trumps religious objections.
It has become clear that religious liberty counts for little with liberals when it conflicts with a core part of their agenda. Whether Al Gore, Hillary Clinton, and other liberal politicians follow the ACLU's example and simply abandon the administration's strong support for RFRA, or go the more politic route of People for the American Way, there is little doubt where they come down in this fight. But life will not be so easy for Bush, who can ill afford to offend the religious right. The seemingly uncontroversial centerpiece of his religion agenda may soon come to stand for the right to discriminate against gays, lesbians, and others.
Bush's top adviser on this issue, University of Texas at Austin law professor Douglas Laycock, agrees with the 9th Circuit that laws protecting unmarried couples from discrimination don't meet the compelling interest standard. "State and federal laws are shot through with distinctions based on marital status," he says, and this fact undercuts the idea that banning such discrimination is a compelling interest. Such laws, he says, simply try to "force a dissenting minority to accept the sexual revolution."
Of course, the same type of ambivalence can be seen in government policies on gay rights. As long as states bar homosexual marriages, it is hard to argue that the same states have a compelling interest in prohibiting landlords and employers from making similar distinctions. In litigation and legislative testimony, religious conservatives have made it clear that they believe employers and landlords with sincerely held religious beliefs have a right to discriminate against gay men and lesbians in employment and housing, regardless of laws to the contrary. Gender-, religion-, and race-based discrimination may still be uniformly forbidden, scholars say, but not without a fight.
It's not an argument Laycock or Bush likes to lead with, but it's one they will not escape. The only consolation for Bush may be that if Al Gore chides him for endorsing discrimination, he can chide Al Gore for hypocrisy in pretending to be a true supporter of religious liberty.
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