by By Ana Choi*
In the wake of the Supreme Court’s decision legalizing same-sex marriage in Obergefell v. Hodges last summer, many conservative states have begun to pass legislative measures trying to stem the progress made by the LGBTQ community. North Carolina passed a law prohibiting transgender individuals from using bathrooms that do not match the gender on their birth certificates. Mississippi passed a law that allows churches, charities, and private businesses to decline services to individuals on the basis of “sincerely held religious beliefs or moral convictions…that:
(a) marriage is or should be recognized as the union of one man and one woman;
(b) sexual relations are properly reserved to such a marriage; and
(c) male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”
The Georgia legislature passed a similar bill, although it was ultimately vetoed by the governor.
In the debate over these legislative measures, the arguments have (unsurprisingly) been framed in very different terms by each side. Supporters argue that these laws are necessary to protect religious freedom, while opponents argue that these laws are authorizing hatred and bigotry towards the LGBTQ community. Most of the time, it seems like the two sides are talking past each other, refusing to even acknowledge the merits of the other side’s arguments.
However, in criticizing these laws, it is not even necessary to resort to language about hatred and bigotry; even if we were to accept that this is purely a religious freedom issue (which it is obviously not), the newly passed laws post substantial problems.
First of all, looking at Mississippi’s law, what does it mean to have a “sincerely held religious belief or moral conviction”? How can we distinguish between a “religious” belief and a regular belief or between a “moral” conviction and a regular conviction? Moreover, how can we tell when these beliefs and convictions are held “sincerely” or merely as cover for discrimination? Of course, these conceptual problems always come into play whenever the government provides accommodations for religious beliefs. However, the problems are more urgent in this context because the risk is not merely that the government will provide a benefit where none is due (for example, providing a kosher diet to a prisoner even though the prisoner does not actually believe in Judaism). Rather, the risk is that a false claim of a “sincerely held religious belief” will be used to justify acts of discrimination. Nobody can claim that in the absence of a “sincerely held religious belief,” refusing service to a same-sex couple is anything but discrimination.
Secondly, the First Amendment does not provide—and people do not expect—absolute protection of freedom of religion. In their daily lives, people deal with all sorts of burdens on their exercise of religion without expecting the government to intervene. If a private employer fires an employee because he refuses to work on the Sabbath, the government has no power to punish the employer. A state cannot prohibit schools from teaching evolution, and neither can it require schools to teach creationism. People’s religious beliefs are burdened all the time, but we as a society have learned to live with these burdens. Yet, supporters of the Mississippi law have not been able to explain why the obligation to provide services to same-sex couples is such an enormous, insurmountable burden that they need a special law to protect them against this burden even while they accept others. When the government is able to accommodate an individual’s religious belief without societal costs, then the magnitude of the burden on the religious belief is perhaps irrelevant. However, when the cost of accommodating the religious belief is to relegate a whole portion of the population to second class citizenship (the undeniable effect of these laws, regardless of the underlying motivation), then it does not seem unfair to ask how exactly the individual’s religious belief is being burdened.
Lastly, if supporters of the Mississippi law wish to defend their position, then they must be prepared to accept all its necessary implications. If the issue is truly about religious freedom, and if religious freedom is a value so dear that it justifies unequal treatment, then theoretically there should be no problem with laws that: 1) allow an airline owner to segregate the male and female passengers on a plane based on a religious belief against men and women sitting next to each other; 2) allow a store owner to refuse to sell kitchen tools to people who eat meat based on a religious belief against killing animals; 3) allow a restaurant owner to ban female customers who are not completely covered up based on a religious belief against female immodesty. There are no principled distinctions between these hypothetical laws and the Mississippi law. To the extent that there is a distinction, it is the fact that these hypothetical laws would be accommodating non-Christian beliefs. And surely defenders of the Mississippi law cannot claim that they only care about Christian freedom of religion.
Making a claim based on freedom of religion does not end the inquiry—it merely begins it. Unless supporters of the Mississippi law and other laws like it can provide answers to the questions posed above, it will be difficult for them to maintain that these laws are about freedom of religion and not discrimination. And as we wait for satisfactory answers, discrimination runs rampant under the guise of religious freedom.
* Ana Choi is a 3L at Harvard Law School.
Image by niiicedave – https://www.flickr.com/photos/33671002@N00/19169062764/, CC BY-SA 2.0, https://commons.wikimedia.org/w/index.php?curid=41852289