Religion and Discrimination: A Constitutional Challenge

I’m not a legal scholar. I’m a sociologist of religion who reflects on the relationship between law, religion, and the nature of pluralism. But I try to keep up in a cursory way with what some of the major legal tensions are in modern society and what those suggest about what it means for us to live with diversity.

I’ve been thinking about this topic for most of the summer. In fact, the early forms of my thoughts on the topic began to form back when Indiana passed its Religious Freedom Law in April of 2015.

My thoughts are not fully fleshed out but I feel pretty confident in the conclusion I think I’m coming to. I am sure I’ll dig deeper into this question in the future but I wanted to get my preliminary thoughts down before the semester starts and I get swamped teaching six classes this fall.

I’ll state my conclusion up front and then circle back to explain how I got here. Here goes:

In an increasingly pluralistic culture, claims of religious freedom will conflict directly with protections against discrimination. When that conflict occurs, the discrimination issues will win. This is the case because there is a conflict between the 1st and 14th Amendments to the Constitution. This means that way the forward for evangelicals in a diverse culture is not to rely on claims of religious freedom but to shift our argument to concerns about equal protection under the law.

ConstitutionLet me start with the US Constitution. As most of us learned in civics class, the 1st Amendment guarantees certain issues with regard to religion. Legal scholars distinguish between the establishment clause (government privileging of one religious group over others) and the free exercise clause (protecting freedom of religion from government interference).The 14th Amendment guarantees birthright citizenship, mandates due process protections, and requires equal protection under the law.

I repeat: I am not a legal scholar. But the history of Supreme Court rulings is very instructive to our current situation.

Take, for example, the phrase “sincerely held religious beliefs”. On the surface that seems to be an affirmation of religion. But it’s curious that the phrase arose in a 1944 decision, United States v. Ballard. It revolved around a California group that called themselves “I Am”. The founders of the movement had, according to the state, bilked people out of millions of dollars based on what the state called “fraudulent beliefs” (this was to prove they acted with intent to defraud). But in Ballard, the Supreme Court ruled that it was not the place of the court to deal with the validity of religious claims.

There are many cases where the Supreme Court ruled in favor of religious protections for individuals in the face of state laws. In Sherbert, a Seventh Day Adventist woman was protected from the demands that she work on Saturday. Similar decisions regarding the Amish and public schools (Yoder v. Wisconsin) or Alaskan Aboriginals and hunting rights (Frank v. Alaska) were upheld.

On the other hand, one of the earliest religious freedom cases (Reynolds v. United States) went against the religious practitioner who in 1844 wanted to practice polygamy in line with his Mormon beliefs. In 1990, a native american lost his job due to peyote use and sued to get unemployment benefits (Employment Division of Oregon v. Smith). The Court ruled that the government had a compelling interest in both cases that overrode the individual claims of religious freedom. The Smith case prompted Congress to pass the federal RFRA in 1993.

In the midst of the coverage of the Indiana law, I wrote this post which quoted a remarkable passage from Justice Scalia writing in the Smith decision. Here it is again:

“It is a permissible reading of the [free exercise clause]…to say that if prohibiting the exercise of religion is not the object of the [law] but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended….To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling’ – permitting him, by virtue of his beliefs, ‘to become a law unto himself,’ contradicts both constitutional tradition and common sense.’ To adopt a true ‘compelling interest’ requirement for laws that affect religious practice would lead towards anarchy (emphasis mine).”

What do I make of this history? First, while the Court supports the free exercise clause, it has been fairly erratic in its decisions. The freedom sought by the petitioner is usually balanced by larger state interests. Second, there appears to be a pattern of granting relief to those from a respected minority group against a majority view (Sherbert or Yoder) but less so against those seen as more marginal (Ballard or Smith). Third, while the idea of “sincerely held religious beliefs” works in certain circumstances where the practice is self-contained (Burwell v. Hobby Lobby or the recent state decision about a Michigan funeral home), it’s hard to see how the same applies to people working and living in broader secular culture.

[There is another avenue for redress beyond direct 1st Amendment claims. In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act, which provides some protection against zoning laws and was the ground for the Holt decision allowing a Muslim  prisoner to keep his beard.]

In short, the tensions between the establishment clause and the free exercise clause make certain application of freedom of religion claims hard to manage. Consider this description of the Locke v. Davie decision (taken from a very good site I found from the University of Missouri at Kansas City):

In 2004, the Supreme Court in Locke v Davey considered the reach of Lukumi Babalu [which protected animal sacrifice by a small group in Florida] in a case involving a Washington State scholarship program for gifted students.  The program allowed students receiving a state scholarship to pursue any major, with one exception: a degree in devotional theology.  When Joshua Davey, a scholarship recipient, was denied funding to pursue a theology program at Northwest, a private religious college, he sued, alleging that Washington had violated his Free Exercise right.  Chief Justice Rehnquist, writing for a 7 to 2 majority, found that the Free Exercise Clause and Establishment Clause, read together, offered enough “play in the joints” to allow Washington to exclude a major in devotional theology, “a religious calling” as much as “an academic pursuit,” from the list of endeavors it will support with taxpayer funds. Justices Scalia and Thomas disagreed, finding the exclusion to be a clear violation of Free Exercise principles laid down in Lukumi Babalu [emphasis mine].

Given this history, it’s not surprising that Indiana’s RFRA law was seen as “license to discriminate” by observers in the press, in industry, and social media. People struggled to see the religious freedom arguments because they didn’t involve state compulsion to not practice one’s religion. Furthermore, an expression of ones group’s free exercise will be seen by others as a distinction against another group. This is the conflict between the 1st and 14th Amendments.

Where the 1st Amendment is open to various interpretations given some of the vagaries described above, the 14th appears relatively straightforward, especially considering the Equal Protection clause. If the petitioners can demonstrate that they have been dealt with differentially under the law, the courts (state, Circuit, Appellate, and Supreme) will tend to affirm the claim.

Consider the decision last month where the Federal Appeals Court ruled North Carolina’s Voter ID law unconstitutional. The court ruled that the state had gone out of its way to select those voting processes that were most used by African Americans. Having found a “smoking gun”, the court’s decision was fairly clear.

It’s important in this light to remember that Obergefell, in legalizing same-sex marriage, was technically a 14th Amendment decision. It was actually a ruling on the unconstitutionally of voter initiatives and state laws that singled out gay couples and said that they couldn’t marry. The Windsor decision, that overturned the Defense of Marriage Act follows the same logic.

I wrote recently about Robert Jones’ great new book, The End of White Christian America. Jones documents the past dominance of Protestants (both Mainliners and Evangelicals) in American society and the ways in which that dominance is declining due to demographic and religious shifts in the society. You can watch a C-Span presentation of Jones’ argument here (and hear me ask the question that prompted this blog post!).

The loss of cultural dominance has some dramatic impacts. One of these is a feeling of persecution (or, more correctly, marginalization).Another is a desire to strike back, to protect against further encroachment.

This spring’s Mississippi law is a good example of this latter approach. In April, the legislature passed a law (HB 1523) designed to protect certain “sincerely held religious beliefs”. It was blocked from taking effect by District Judge Carlton Reeves at the end of June. Here is a summary of the law taken from his ruling.

HB 1523 enumerates three “sincerely held religious beliefs or moral convictions” entitled to special legal protection. They are,

(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 (p.11).

Judge Reeves ruled that there were 1st Amendment Establishment Clause issues in privileging a particular religious view for state protection. But most of his decision was based on 14th Amendment Equal Protection issues.

The State’s argument overlooks the fundamental injurious nature of HB 1523 – the establishment of a broad-based system by which LGBT persons and unmarried persons can be subjected to differential treatment based solely on their status. This type of differential treatment is the hallmark of what is prohibited by the Fourteenth Amendment.

As I stated earlier, differential treatment either experienced or anticipated is not difficult to prove. So attempting to carve out special religious conscience clauses are unlikely to pass constitutional muster.

There are, however, other strategies for Christians to navigate these churning seas of cultural change beside holding to our past positions and claiming 1st Amendment protections. Earlier this summer, I wrote about John Inazu’s book Confident Pluralism. While John ends up in some different places that I do, his book is helpful. I’ll repeat the quote I used in my earlier review:

 The goal of confident pluralism is not to settle which views are right and which views are wrong. Rather, it proposes that the future of our democratic experiment requires finding a way to be steadfast in our personal convictions, while also making room for the cacophony that may ensue when others disagree with us. Confident pluralism allows us to function — and even to flourish — despite the divisions arising out of our deeply held beliefs (8, emphasis mine).

This week my friends Alan Noble and Michael Wear, along with others, launched a new initiative they’ve called Public Faith. You can read their vision statement and sign an affirmation here (I did right away!). They rightly lay out a vision that suggests that Christians play a vital role in society without expecting dominance or withdrawal. While I may differ on some policy orientations, there is a great deal to admire here. Consider this paragraph from the opening passage:

Also central to true pluralism is the continued inclusion of people of faith and religious organizations of various backgrounds and beliefs in the American political community. We believe strongly in religious freedom for all as a bedrock principle that will be essential if we are to build a more inclusive America in this new century. Such freedoms include religious minorities—including Muslims—and religions that hold beliefs that are unpopular. Religious freedom is not absolute, and religious freedom should not cause undue harm to achieve political ends, but it should only be infringed upon in the most extenuating circumstances, and only when absolutely necessary. This idea is not new, but reflected in both statutes and our Constitution. Christian institutions deserve full inclusion in American society, and efforts to starve or stigmatize Christian institutions by force of law or government-endorsed marginalization should be opposed (emphasis mine).

This, then, is where I think we end up.

Rather than calling for religious freedom protections on 1st Amendment grounds as a way of defending our past positions in light of social change, we evangelicals need to give more thought to the way the 14th Amendment Equal Protection and Due Process protections could work. That will require us to be far clearer about the harm done by participating in a pluralistic culture that doesn’t share our values. Failure to do so has been why claims of bakers, photographers, and court clerks have not tended to prevail in court.

We have recently seen an example where my 14th Amendment approach may be in operation. This spring a legislator in California introduced SB 1146 which was aimed at Christian Colleges that had Title IX exemption around LGBT acceptance (California has a state non-discrimination law). There was great concern in the Christian community about what such an approach meant for religious freedom and the future of Christian Higher Education. But as the bill made its way through the state assembly, having passed the Senate, accommodations were made that allowed the Christian schools to continue to operate (while requiring disclosure of the exemptions). It really did attempt to find a way to protect both Christian institutions and LGBT students who might consider attending them.

Alan Noble wrote what I think is an excellent analysis in The Atlantic. There were critics of Alan’s article from both left and right, which is how things will go if we pursue the kind of confident pluralism that the coming decades will demand.

We may be approaching the “End of White Christian America” but there is still a solid voice for people of faith in the midst of the coming diversity.


5 thoughts on “Religion and Discrimination: A Constitutional Challenge

  1. I believe that the new “rule of law” in the U.S. has become increasingly intolerant of Christ and His Church. The leaders of our nation, by en large, are antagonistic toward Christ and His claims, and are set in their vicious and violent opposition. This is not new in world history, Biblical and post-Biblical times. We should not be alarmed, as followers of Christ. Nor, should we be deceived into compromise with the present world order. The wrangling about which amendment of the U.S. Constition to use as a defense for the Christian faith in American culture is pointless in an increasing lawless and anti-constitutional and anti-Christian leadership in our courts, our legislature and executive branches of government. There is no way forward, legally speaking, for the church. IN these days in our court system, for every step forward there are 5 steps backwards in regard to the Christian conscience and belief. A new “law of the land” is emerging based on radical individualism and hedonism. It is a revival of rank and violent paganism, akin to Rome and Babylon, and at times cloaked in Christian garb. Pluralism is not the aim of the Christian church. It is certainly not the aim of the emerging pagan religion in America. To see pluralism as a “way forward” is a theory that is doomed to failure.

    1. I think it still works in the short term. If Trump got to replace the Federal Appellate bench, that might change. This is why lifetime appointments are not always a bad thing!

      1. In the larger world context the religious freedom argument is deeply entrenched in a narrative about white, western, Christian decline that requires special protections for religious minorities. If events and changing hands on the levers of power in the US and beyond continue to feed this narrative, the context in which religious liberty issues are framed may wield more influence over courts than the other way around.

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