Religious Liberty or Legalized Discrimination?
Introduction
The current American legal and political discourse is substantially filled with debates. Pro-life, pro-choice, pro-gun, anti-gun, the political scene has always been driven by differing stances on a multitude of issues. The outcomes of some issues are decided in the House and Senate chambers, or the Oval Office, yet others are decided in the courts. While abortion is an issue that has frequently been posed to the Supreme Court, others sit off the distance, awaiting their turn on the agenda. Some issues obviously hold more weight than others, and many cases play a large role in developing our law, and, because of the way that precedence works, it may play an even bigger role further down the line. Civil rights may appear to be a simple issue at face value, but the real complexities occur at the intersection of constitutional rights, and that is the issue today.
Where has the line been drawn when it comes to some of these constitutional rights?
It’s been clearly demarcated in some instances but hasn’t in others. One may scream fire in a movie theater, invoking the First Amendment as their right to do so, but we’ve drawn the line as upholding public safety over your right to do so. Similarly, that’s where this dilemma stems. We have laws that allow people to practice their religion, with some reasonable limits, and we also have laws that protect people from being discriminated against. In this conflict, the two clash.
Masterpiece Cakeshop Case
Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) is the high-profile case in which this debate made national news [1]. Jack Phillips, the owner of the shop, refused to bake a cake for a gay couple who were planning to marry. He argued that his religious beliefs didn’t allow gay marriage, and by baking a cake for the couple, he’d be going against his beliefs. Colorado’s Civil Rights Commission attempted to punish Phillips for his actions, and the Supreme Court took notice of the dispute between Phillips and the state. Justice Anthony Kennedy wrote the majority opinion, where they determined that the treatment that the Colorado group gave towards the case violated Phillips’ Constitutional rights.
The Colorado law against discrimination had to have been applied with a neutral stance towards the bakery; the SCOTUS found that the commission didn’t have this neutral stance and was actually hostile towards the religious stance that Phillips had taken. Justice Kennedy gave his reasoning within the majority opinion:
“The State’s interest could have been weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. But the official expressions of hostility to religion in some of the commissioners’ comments were inconsistent with that requirement, and the Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same.” (Masterpiece vs. Commission 2018)
SCOTUS used similar cases that the commission had reviewed and found that bias was used in the Masterpiece case, and that was a violation to Phillips’ First Amendment rights [1]. Where did this hostility stem? Justice Kennedy cited this quote, from the commissioner of the state commission in 2014:
“I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” (Masterpiece v. Commission 2018)
The Masterpiece ruling was inconsequential in creating precedent for the underlying issue, religion in business. All that the ruling did was say that the state has to have a neutral stance towards religions when handling similar cases. Given that the decision was made against the commission and not the couple, it doesn’t have any impact on that Constitutional question. The case demonstrates the contentious feeling surrounding the issue. While it is important to recognize the freedom of religion, how far does that freedom extend in business? As the discourse surrounding the issue grows, the stakes become higher and higher. The argument of hostility creates a fine line that similar players will have to walk in the future. While it didn’t decide who was in the right or wrong with regards to Phillips’ conflict with the couple, it did make the state’s interest harder to pursue. However, the Supreme Court took a far more government-favored approach in Employment Division v. Smith in 1990.
Employment Division Case
The entire issue stems from how far the interest of upholding religious liberty can abridge or circumvent the rules set in place. Since religion is such a broad and varying topic, it can be difficult to determine the lengths that should be taken. Through this case, SCOTUS created a standard for what length the government can impose rules against religion. Two workers for a private rehabilitation center were fired for using Peyote, a drug used in religious ceremonies as a part of the Native American Church [2]. They applied for unemployment, but the state government in Oregon claimed that they couldn’t receive benefits because they were fired for “work-related misconduct”[2]. The Oregon State Court of Appeals reversed this decision in their favor, as they felt that the denial violated their First Amendment right to free exercise of religion. The Oregon Supreme Court upheld this ruling as well. The US Supreme Court vacated the ruling, sending it back because they wanted the lower court to determine if the religious use of the drugs violated the state’s drug law [2]. They found that it did, but believed that the law itself violated the Free Exercise Clause. The Supreme Court granted a writ of certiorari upon the lower court’s decision. Justice Antonin Scalia wrote the majority opinion, giving a ruling that conflicted with the lower court:
“Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” (Employment Division v. Smith 1990)
The Smith decision was considered controversial enough that it drove Congress to pass the 1993 Religious Freedom Restoration Act, a direct response to this decision [3]. The act made state interference with religious liberty far more stringent, with the only exception being a “compelling governmental interest” [3]. This invoked a previous SCOTUS case, Sherbert v. Werner. Interestingly enough, Justice Kennedy didn’t invoke the RFRA in this decision, which would lead one to believe that the Smith precedent should apply [1]. The state government attempted to punish what it saw as an act of discrimination but was found wrong not because of the decision they made, but rather the words that came with it. Even under the RFRA, it could be argued that the government has a “compelling governmental interest” to combat discrimination. The RFRA was used in the next discussed decision, Burwell v. Hobby Lobby (2014) [4].
The Hobby Lobby Case
The SCOTUS struck down the application of the RFRA on the federal level prior to this ruling, which made the usage of it here valid. Under the ACA, for-profit institutions were required to supply certain types of health care for their workers, including contraceptive care [5]. Hobby Lobby felt that, because of their religious beliefs, they couldn’t be forced to supply contraceptive care, using the RFRA as a reference. Justice Samuel Alito wrote the majority opinion, where SCOTUS found that Hobby Lobby was correct:
“Since RFRA applies in these cases, we must decide whether the challenged HHS regulations substantially burden the exercise of religion, and we hold that they do. The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price—as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would.” (Hobby Lobby v. Burwell 2014)
The Supreme Court couldn’t find the government’s interest in this contraceptive care compelling enough, and thus only outlawed this specific mandate within the ACA, and the rest of the law stood [4]. With these two landmark cases, the current climate seems to be shifting towards a focus on upholding the religious rights, but the stakes for this issue continue to grow larger.
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