Establishment Pause: Religious Freedom Meets Anti-Discrimination Law

Article excerpt

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. …