The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Below, co-blogger Dale celebrates the fact that Indiana is going to exempt "civil rights" (antidiscrimination) laws from its state religious freedom act.
I don't think antidiscrimination laws presumptively deserve special status, and I therefore don't think they should be exempted from state RFRA's, or should otherwise be exempted from civil liberties protections, statutory or constitutional. In other words, state RFRAs shouldn't exempt antidiscrimination laws, and when courts are enforcing constitutional rights such as freedom of speech and freedom of religion, they should not find that antidiscrimination laws constitute "compelling government interests" sufficient to override those rights.
I argued this point in great detail in my 2003 book, You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws. The first twenty-six pages of the book can be found here. Some of the arguments from that book appear in this essay in the North Carolina Law Review. this essay in the Missouri Law Review, this article in the University of Chicago Legal Forum, this article in Social Philosophy and Policy, and this article in The William and Mary Bill of Rights Journal. A chapter dealing with the ACLU's abandonment of civil liberties in favor of antidiscrimination laws is excerpted here.
As a historical aside, the liberal left's hostility to RFRA didn't start with gay rights, but with cases in the 1990s in which religious landlords who owned a few rental units declined to rent to unmarried, heterosexual individuals. This ran afoul in some states of laws banning discrimination on the basis of marital status.
At the time, liberal civil libertarian groups like the ACLU didn't claim that this was just "bigotry disguised as religion," but rather that though it was the exercise of religion, (a) antidiscrimination concerns, even ones as trivial as heterosexual couples being denied an apartment in a huge metro area with many other willing landlords, should trump religious freedom; and (b) given that courts might not always agree that antidiscrimination concerns are a "compelling interest" sufficient to trump statutory religious freedom rights, they would no longer supports RFRAs that didn't exempt antidiscrimination laws.
Thus, liberal opposition to RFRA seems to have originated as a combination of treating antidiscrimination as a trump over almost any other right (the national ACLU-but not all state ACLUs-has so far exempted pure speech), and hostility to assertions of rights by traditional Christians, as opposed to the peyote-smoking Native Americans, Sabbatarians, Amish, and other groups more traditionally associated with free exercise claims.
In any event, gay rights advocates do have a legitimate concern that religious conservatives are seeking to target laws protecting people on the basis of sexual orientation rather than protect religious freedom, as such.
I have heard a very prominent religious conservative argue that religious freedom should protect the right of someone to not photograph a gay marriage because of religious objections to such a marriage, but should not protect the right of someone to not photograph an interracial marriage because of religious objections. This individual may have a coherent reason for believing that, but if so it wasn't apparent from his remarks, beyond the possibility that he thinks it would be politically infeasible to defend the latter.
So here's my suggestion: instead of exempting antidiscrimination laws from state RFRAs, instead write into the laws a provision that the compelling interest test should be applied with the same rigor regardless of which group an antidiscrimination law protects. Therefore, a photographer should have the same right, but only the same right, to refuse on religious grounds to photograph a gay wedding as an interracial wedding, or a wedding between a Jew and a Gentile, or whatever.
If RFRA advocates aren't willing to defend the right of someone who believes that interracial or interreligious marriages are against God's will to refuse to participate in such weddings, then they don't have much of a leg to stand on when it comes to gay marriage. But the better position is to allow exemptions in all those situations.
And the even better position is to not require people to provide non-essential services outside of public accommodations to anyone they choose to not do business with, for any reason. (And indeed, such rules are often the product of creative judicial interpretations of laws banning discrimination in "places of public accommodation," not legislative action.)
Finally, some of you may be asking, "does that mean that you think the Bob Jones case was wrongly decided?" Yes and no. I think it was wrongly decided in that the Court held that Bob Jones University's free exercise rights were subordinate to the government's purported compelling interest in forcing Bob Jones to allow interracial dating among its students. I think it was rightly decided in that I don't think that Bob Jones ever had a sincere religious belief in banning interracial marriage to begin with, but rather was clinging to a vestige of its former segregationist policies. Contrary to current Supreme Court jurisprudence, I think if we are going to have broad free exercise rights, it's not untoward to inquire to some degree into the sincerity of the religious beliefs of those asserting the rights.
UPDATE: I should note that I'm ambivalent both about whether state RFRAs are a good idea, and whether the federal and state free exercise clauses should be deemed to include the religious freedom protections that inspired RFRA. But once such protections exist, I reject the notion that antidiscrimination laws be categorically exempt from those protections.