Antonin Scalia

Establishment Pause

Religious freedom meets anti-discrimination law

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Ever since Southern restaurateur Lester Maddox brandished ax handles in the mid-1960s to make the case against laws that prohibit private discrimination, few have had the stomach to question the burden such measures place on individual liberty, much less argue that they impinge on constitutional rights.

Texas Gov. George W. Bush, the leading contender for the Republican presidential nomination, is one of the last politicians one would expect to take on such an issue. But the soothing would-be savior of moderate Republicanism, whose preferred role has been as Pepto-Bismol to the dyspeptic right wing, is serving up a "religious freedom" bill that may sanction the sort of discrimination Maddox liked to dish out.

Not that he set out to do so. The Bush-sponsored Texas Religious Freedom Restoration Act (RFRA) doubtless was chosen as a mom-and-apple-pie substitute for such indigestible religious dishes as abortion. It was patterned on a federal law that passed Congress almost unanimously in 1993, only to be struck down by the U.S. Supreme Court on federalism grounds in 1997. The modest aim of RFRA is merely to "restore" the traditional legal standard for protection of religious liberty that existed before Employment Division v. Smith, a 1990 case in which the Supreme Court concluded that the First Amendment does not require states to accommodate the ritual use of peyote.

But RFRA, similar to legislation that has been approved or is being considered in about 20 other states, would not merely create a religious exception to drug laws. It would establish a principle that could entitle religious landlords, employers, and service providers to ignore laws that bar discrimination against gays, lesbians, and other minorities if those laws conflict with religious doctrines.

This possibility has just begun to register at the political level in Austin, but both conservative and liberal legal experts see it as the clear message of a January decision by the U.S. Court of Appeals for the 9th Circuit. In Thomas v. Anchorage Equal Rights Commission, the court held that landlords may refuse on religious grounds to rent to unmarried couples, despite a state law protecting such couples from housing discrimination. The decision, which is binding in California and eight other states, applied the same test for religious liberty that the Bush bill mandates.

The curious thing is that Bush's RFRA is virtually identical to legislation that the Clinton administration and liberals such as Sen. Ted Kennedy (D-Mass.) have strongly supported for several years. The 9th Circuit's decision has exposed the flaw in a political fantasy embraced by Bush, Kennedy, the Clinton White House, Sen. Orrin Hatch (R-Utah), and even, until recently, the American Civil Liberties Union. These strange bedfellows thought they could shield religious freedom from state interference without sacrificing any of their other priorities.

The legal problem boils down to two large questions: First, must the government show a "compelling interest" before it can enforce laws that place a "burden" on the free exercise of religion? (Bush's bill says yes.) Second, what counts as a burden, and which interests are compelling?

The first question has been a hot one since Smith, the 1990 peyote case. The Supreme Court said the answer was no, partly because the second question was too vague and subjective for judges to settle. The case involved two Oregon members of the Native American Church who were fired from their jobs as drug counselors after their peyote use was discovered and who were subsequently denied unemployment benefits because of their "misconduct." Writing for the 5-4 majority, Justice Antonin Scalia said Oregon did not have to make an exception to its drug laws for religious use of peyote, no matter how ancient the practice. As long as a law does not single out a particular religion for unfavorable treatment, he said, it does not run afoul of the First Amendment's Free Exercise Clause.

Despite this precedent, the 9th Circuit in Thomas found an ingenious way to require a religious exemption from a generally applicable law. In Smith, Scalia said the Court had applied a compelling interest test in earlier religious liberty cases, such as a 1972 decision that exempted Amish children from compulsory school attendance, because those cases included other constitutional claims. He thus suggested that hybrid claims combining religious freedom with other constitutional interests could be powerful enough to require demonstration of a compelling government interest.

Until the 9th Circuit's decision, commentators had written off Scalia's statement as an attempt to finesse inconvenient precedents. But in Thomas, 9th Circuit Judge Diarmuid O'Scannlain held that the plaintiffs, Christian landlords in Alaska who sought to exclude unmarried couples from their buildings, had asserted other "colorable" claims along with the free exercise claim–namely, the free speech right to express a preference for married couples and a property right to select tenants. Taking Scalia at his word, O'Scannlain applied the compelling interest test. He concluded that the state of Alaska did not have a compelling interest in protecting unmarried couples from landlords who for religious reasons refuse to rent to them.

Even if the 9th Circuit's ruling is ultimately overturned, it demonstrates the potential impact of the test that Bush wants to establish by statute. The Texas bill is part of the backlash that followed the Supreme Court's ruling in Smith. Although the Native American Church successfully lobbied the Oregon legislature for an exemption from the peyote ban, the case provoked bipartisan cries of outrage and vows to protect religious freedom. In a typical statement in early 1993, shortly before Congress enacted its Religious Freedom Restoration Act, the ACLU accused the Supreme Court of rolling back two centuries of First Amendment tradition, "effectively reading the Free Exercise Clause out of the First Amendment." Like Bush's bill, the federal RFRA barred legal interference with religiously motivated conduct in the absence of a compelling government interest. The law passed on a voice vote in the House and by a vote of 98 to 1 in the Senate. President Clinton signed it later calling it "one of the proudest things I've been able to do as president."

The Supreme Court struck the federal RFRA down in 1997, finding that it exceeded Congress' power to regulate state and local government. The RFRA coalition then turned its attention to the passage of state legislation. By the end of 1998, five states, including Illinois and Florida, had their own RFRA laws. In addition to Texas, RFRA legislation has been introduced in more than a dozen other states.

In their eagerness to hop aboard the USS Religious Freedom, politicians have not been paying much attention to where it's headed. As the Supreme Court realized, once judges start scrutinizing every law that burdens religion, looking for a compelling interest to justify it, they are forced to compare apples to oranges, worldly ends to spiritual imperatives. Is a state's desire to forbid discrimination against certain groups compelling enough to outweigh an individual's sincere religious abhorrence of fornication, homosexuality, heretical faiths, or interracial marriage? How are courts to determine which religious beliefs or practices are genuine? Why recognize the use of peyote by Native Americans but not, say, the use of marijuana by Rastafarians? And might the policy of granting religious exemptions to people of certain faiths run afoul of the First Amendment's Establishment Clause?

Given the thorny questions raised by the movement to "restore" religious freedom, it's remarkable that the laws have not generated more controversy. Until the discrimination issue surfaced, the RFRA debate was lackluster. Though both sides trotted out horrible hypotheticals, supporters lacked actual examples of people whose religious rights had been trampled as a result of the peyote case, while opponents lacked actual examples of people who had used religious freedom to shield intolerable behavior. Whether the issue was a prisoner's right to wear Satanic jewelry or to drink communion wine, the enforcement of zoning rules against churches, child abuse in cult communes, or resistance to mandatory child immunization programs, there was a broad social consensus on the appropriate policy. The dispute seemed to be mainly about whether judges or legislators should decide how to accommodate religion.

The hottest controversy centered on the ability of prisoners to invoke the compelling interest test. Last fall, California passed a RFRA law similar to the Bush bill, but Gov. Pete Wilson vetoed it, citing the possibility that prison inmates would disrupt order and discipline by bringing a plethora of lawsuits.

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.