Academic journal article American University Law Review

Playing outside the Joints: Where the Religious Freedom Restoration Act Meets Title VII

Academic journal article American University Law Review

Playing outside the Joints: Where the Religious Freedom Restoration Act Meets Title VII

Article excerpt


You just returned from your honeymoon with your new wife. You are excited to get back to work, but when you arrive, you notice your name is no longer outside of your office and your key does not fit in the lock. You go to the Vice President to demand answers. He tells you that both his faith in God and the christian Bible have taught him that marriage is between a man and a woman. He cannot, in accordance with his faith, let you, the closeted lesbian who has helped build this company, continue to be a part of his team. You are fired.

After a few days of shock, you file a charge with the Equal Employment Opportunity Commission (EEOC). You claim that the company unlawfully discriminated against you, and therefore violated Title VII of the 1964 Civil Rights Act. The EEOC investigates your case and finds reasonable cause to believe the company unlawfully discriminated against you. After months of investigating, the EEOC files a suit against the company. At trial, the company argues that requiring it to retain a homosexual employee violates its sincerely held religious beliefs. Under the Religious Freedom Restoration Act (RFRA) ,1 the company should be exempt from Title VII's prohibition on employment discrimination. At the end of the trial, the court holds that requiring the company to maintain you as an employee violates the company's sincerely held religious beliefs. Further, because the EEOC failed to show that requiring the company maintain you as an employee is the least burdensome recourse, the company is exempt from Title VII. You lost.

While the scenario above is hypothetical, it is far from conjectural. RFRA prevents the government from substantially burdening a person's religious exercise2 unless the government can pass strict scrutiny by demonstrating: (i) it has a compelling interest in applying the law to the person, and (ii) it is using the least restrictive means of achieving that interest.3 Therefore, if a federal statute or regulation substantially burdens an individual's religious exercise, even if unintentionally, the government must satisfy strict scrutiny or it must exempt the individual from the burdensome statute or regulation.4

In Burwell v. Hobby Lobby Stores, Inc.,5 the Supreme Court held that the judiciary is not capable of measuring the substantiality of the burden a government action has on religious exercise.6 Rather, courts can only inquire into whether the religious objector honestly believes that the government is substantially burdening his religious exercise.7 Further, the Court held that closely held, for-profit corporations are "person[s] " under RERA, whose religious exercise RFRA therefore protects.8

The Hobby Lobby decision represents an extreme expansion of religious liberty. First, by deeming itself incompetent to decide whether the government substantially burdened religious exercise, the Court eliminated the threshold question used to determine whether strict scrutiny should be applied.9 So long as a person honestly believes the gove rnme nt is burde ning his re ligious exe rcise, strict scrutiny must apply.10 Additionally, by expanding RFRA protections to corporations, the Court effectively provided exemptions from laws specifically designed to circumscribe corporate power and protect individuals from harmful corporate conduct.11

This directly implicates Title VII of the 1964 Civil Rights Act,12 which prohibits employers from taking adverse employment actions against employees because of their race, color, religion, sex, or national origin;13 and, is particularly relevant to claims of employment discrimination on the basis of sexual orientation and gender identity.14 Unlike race, lesbian, gay, bisexual, transgender (LGBT) status is seen as a choice by some judges,15 and even if it is not, the outward projection of this status is partially within control of the employee. Therefore, rather than requiring the employer to maintain a flamboyant LGBT employee, a less restrictive alternative is to require the employee to present in a more hetero-normative or cis-normative manner while at work. …

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