March 25, 2014
The clash between religious liberty and equal protection is front-and-center in recent news. Arizona governor Jan Brewer recently vetoed SB 1062, an expansion of her state’s Religious Freedom Restoration Act. Mississippi is considering enacting its own RFRA, and the Supreme Court has agreed to hear Sebelius v. Hobby Lobby Stores, Inc., involving a corporation’s religious rights under the federal RFRA. How did we get here, and what does an hallucinogenic cactus have to do with it?
Religious rights and civil law have maintained an uneasy relationship from the founding of our nation – and well before. This tension is especially acute when the religious liberty of one person can infringe the freedom of another, or vice versa. And when the deepest aspects of personhood – core values, intimate relationships, and reproductive decisions – are all involved, sensitivities are on a hair-trigger.
The Supreme Court’s present standard in free exercise cases owes its existence to an hallucinogenic cactus, lophora williamsii – “peyote.” Oregon banned it, but members of the Native American Church, for whom peyote had ancient religious significance, challenged the ban on free exercise grounds. In Employment Division v. Smith (1990), Antonin Scalia effectively set aside Sherbert v. Verner (1963), which had required “compelling state interest” advanced by “least restrictive means,” to “substantially burden” a “sincerely held religious belief.” Instead, Scalia required only a “neutral law of general applicability.”
Distinguishing situations where free exercise intertwines with liberty interests like speech or association – invoking a higher standard of review – Scalia reasoned that where free exercise alone is at issue, applying the Sherbert standard would, absent a compelling state interest, produce a religiously-based “private right to ignore generally applicable laws.” Not only would such a standard invite anarchy, the attempt to preserve it by limiting Sherbert’s application to “central” religious conduct would improperly entangle judges in determining something so subjective as religious “centrality.” Acknowledging the impact of cultural diversity, Scalia deferred to the legislative arena for imposition of any standard higher than “neutral and generally applicable.” Unlike the judiciary, legislatures could enact, amend, and repeal laws as experience might dictate.
A political firestorm followed Smith, with the federal government and 17 states, including Arizona, passing Religious Freedom Restoration Acts (RFRAs), reviving Justice William Brennan’s stricter Sherbert standard – and the challenges accompanying it. One such challenge, acutely felt by gay marriage and reproductive choice supporters, is whether equal protection of the laws can survive in the face of religious exemptions. Can goods and services be denied on grounds of religion and conscience? Is the battle between religious liberty and equal protection a win-lose proposition?
Legal scholars have advanced two competing approaches to the religious liberty versus equal protection conundrum. The first, represented by the state and federal RFRAs, is the legislative revival of the Sherbert test. Religious conservatives favor this approach because it offers broad protection against a potential Hobson’s choice between the dictates of conscience and the requirements of law. However, for gay marriage and reproductive choice advocates, such broad exemptions pose the threat of eviscerating the very rights they worked to gain. A second approach, based in antidiscrimination law, would judicially carve out narrow discrimination exceptions based on specific circumstances. This approach finds greater approval among gay marriage and reproductive choice supporters, because it favors equal rights, but religious conservatives criticize it as hopelessly narrow and piecemeal.
As pluralism advances, conflicts between free exercise and equal protection will heat up. Such is the price for religious freedom in a culturally diverse nation. While specific outcomes can’t be predicted, our history suggests that a balance, however imperfect, will be struck that protects both equality and conscience, at least at their center-of-mass, and especially where other liberty interests are involved. However frustrating the process of reaching that balance, it is worth recalling that controversies that once routinely led to the arena, the prison, or the battlefield, now lead to the voting booth, the legislature, and the court house (and, of course, the blogosphere). That is a victory we can all celebrate.