The Hobby Lobby Conundrum

SCOTUS decision in Hobby Lobby was hailed by some religious freedom advocates as a victory for religious freedom, but the fallout from that case has harmed religious freedom more broadly and has fueled recent attacks on religious freedom generally. The idea that Hobby Lobby is bad for religious freedom might seem counterintuitive. The following three excerpts from Chapter 5 of Freedom’s Edge explain why Hobby Lobby may be damaging to religious freedom in the long-run:

“. . .The purpose of this section is to argue that granting for-profit entities religious freedom rights under a RFRA is not just a legal error but also a strategic error of epic proportions for religious freedom advocates.

Simply put, Hobby Lobby is bad for religious freedom. Even if I did not think it was a terrible legal decision, the fact remains that it is a strategic catastrophe for religious freedom generally. Ironically, one of the best ways to protect religious freedom for individuals and traditional religious entities against the immense backlash religious freedom has been facing would be to amend the federal RFRA and state RFRAs to deny protection to for-profit entities. This is the opposite of what many state legislatures have been attempting to do.

In making this argument, I am not disparaging the Green or Hahn families, who no doubt had sincere religious beliefs that forced their hand. Nor am I disparaging the excellent lawyers who advocated on their behalf (in my opinion, it was a great job of lawyering since they were able to sell Justice Samuel Alito and the majority of the Supreme Court, except for perhaps Justice Anthony Kennedy, the legal equivalent of the Brooklyn Bridge). I am pointing out the simple reality that Hobby Lobby will prove to be worse for religious freedom than Employment Division v. Smith (the peyote case).

I realize this is a radical statement, so I will back it up later in this chapter. Unfortunately, backing it up becomes easier almost every week as the country experiences more cultural backlash and fallout from the Hobby Lobby Court’s protection of for-profit entities’ religious freedom in a manner that could potentially harm third parties’ rights. Both the protection of for-profit entities’ religious freedom and the implication that religious freedom claims could negatively affect third parties were unprecedented. But even assuming that these were the correct legal decisions, the fallout from these arguments both before and since Hobby Lobby has been stunning.

Again, I am not attempting to belittle the impact that owners of closely held companies such as the Greens and the Hahns face. In fact, you could add Elane Huguenin and Jack Phillips to that list. These people are faced with a Hobson’s Choice: violate the tenets of your faith and become complicit in something you believe to be sin, thus damaging
the very core of your being and depending on your belief perhaps your eternal life, or give up the profit-making element of your business.

Of course, there is a profound difference between a religious entity and a for-profit corporation. This is the problem. Once we begin protecting for-profit entities, the likelihood of claims of discrimination will increase dramatically. We witnessed public outrage over the argument that a for-profit business can discriminate based on religious
freedom even before Hobby Lobby was decided, but that outrage has reached a fever pitch since and will only increase.”

“. . . [T]here is a fundamental difference between for-profit entities and religious entities. Religious entities generally serve their own flocks, and to the extent that they reach out through charity to serve others, they do so as part of their religious mission and not for
any profit motive. The purpose of these endeavors is religious. When a church opens a “restaurant” and only serves food for free to the poor, we call it a soup kitchen, not a restaurant. If a church opened a department store for the general public and did so as a profit-making venture, the store could lose its status as a protected religious entity.”

“Many advocates of religious freedom hailed the Hobby Lobby decision as an important and welcomed victory. If it is a victory, it is a pyrrhic one, because it threatens to undermine religious freedom more generally. I promised I would offer proof of this point. Offering that proof is the purpose of this section.

Religious freedom has recently come under blistering attacks in public discourse. Both the courts and the public have been slow to understand “lived religion,” the idea that for many people of faith, religion is inseparable from other aspects of life and is lived daily, not just at services on Saturday or Sunday. Ironically, while the Hobby Lobby decision recognizes this, it does so in a context where lived religion is asserted by a for-profit entity to the detriment of employees who do not necessarily share the owners’ faith commitments, thus giving further ammunition to those attacking religious freedom.
As this section explains, protecting for-profit entities, whether large closely held corporations such as Hobby Lobby or smaller public accommodations such as Elane Photography and Masterpiece Cakeshop, will undermine religious freedom in the long run.

There are two reasons for this. First, as rights have been applied to broader classes of people and situations, the courts have often interpreted those rights more narrowly for everyone. Second, we are already witnessing significant backlash against the Hobby Lobby decision in battles over state RFRAs and other state and federal legislation. Moreover, arguments that for-profit corporations should be protected by RFRA and the decision in Hobby Lobby confirming this have helped push religious freedom directly into the culture wars in a way that it was not before these claims arose.

Both in public discourse and in legislative battles, Hobby Lobby has left a wake of destruction for religious freedom and discourse about religious freedom, and this trend is only beginning. RFRA was once seen as being about protecting religious minorities and other religious people from state intrusion on their religious freedom, but RFRA is increasingly being characterized as a license for religious entities to discriminate and harm third parties. This undermines arguments for passing more state RFRAs and may undermine existing RFRAs.”

The above passages point out the conundrum posed by the Hobby Lobby decision. Prior to Hobby Lobby, RFRAs traditionally served to protect religious individuals and religious entities such as churches and religious non-profits. While it is certainly possible that religious entities might follow their views on sexual freedom within the entity itself, this was not particularly damaging to the broader cause of religious freedom. Once we bring for-profit entities into the mix, however, the possibility of discrimination in public life increases exponentially. As a result those who oppose religious freedom more generally were given a PR gift by the Hobby Lobby decision. Now, any RFRA is likely to be equated with discrimination, even if the primary focus of RFRAs is protecting Native Americans, Jews, Buddhists, Muslims, and yes Christians, from having their religion substantially burdened by government in contexts that have no impact on third parties.

I don’t think for-profit entities, except perhaps sole proprietorships and small family shops, should receive any protection under RFRA. Even if you disagree with me legally, it is hard to ignore the pragmatic harm of protecting for-profit entities under RFRA. As for sole proprietorships and the like, accommodations that do not harm the rights of third parties are possible, but they would have to be very carefully drawn as suggested in earlier posts on this blog.



Mississippi’s Folly and Utah’s Wisdom

As you may know I am a big supporter of both anti-discrimination laws to protect members of the LGBT community and Religious Freedom Restoration Acts to protect people of faith. The combination of these protections for each side can work together to foster rights on both sides. When one side overreaches, however, the damage to the broader cause of LGBT rights or religious freedom can be severe. I wrote the other day about the situation in Iowa. Today, I write about a law that was passed in Mississippi known as HB 1523, or the “Protecting Freedom of Conscience from Government Discrimination Act.” This law was a massive overreach and was aimed directly at same-sex marriage and LGBT rights more broadly (and in fact its language is broad enough to interfere with sexual freedom in many contexts).

Mississippi already had a Religious Freedom Restoration Act (RFRA), which is not an issue in this context. Mississippi HB 1523 is far from a RFRA and seems designed to foster discrimination against members of the LGBT community. It covers public accommodations, for-profit entities, government workers, and even foster care. It was signed into law on April 4, 2016 and struck down as unconstitutional by a Federal District Court on June 30, 2016.  Yet, by that point Mississippi had already damaged the cause of religious freedom nationally through it’s overreach. The law fed into the religious freedom=discrimination mantra that is offensively inaccurate and yet often taken as truth by the media.

When legislators openly use religious freedom protections to discriminate against the rights of same-sex couples they harm the cause of religious freedom generally. While these sorts of overreaches might play in some home districts, these legislators might as well take aim at religious freedom in America more generally, because their pandering and/or shortsightedness is leading to the slow death of religious freedom more broadly.

Thankfully, we have great examples of more balanced approaches from more thoughtful legislatures. For example, in Utah, the state passed a set of laws often referred to as the “Utah Compromise,” which both protect the rights of same-sex couples seeking to get married and those who have religious objections to facilitating same-sex marriage. The religious accommodations are designed in a manner so that there is no inconvenience or cost from the religious accommodation placed on same-sex couples. The law is not perfect, but it shows what can happen when communities work to find compromise rather than pander to the worst instincts in society. I write a lot about the Utah compromise in the book Freedom’s Edge. As I mentioned, the compromise is not perfect but it is a great start and a great example of the possibility of coming together to protect both sides.

What the Heck is Going on in Iowa?

Many of you have seen the headlines about the state of Iowa being sued by two churches because the Civil Rights Commission interpreted a state law to potentially apply to church services and child care centers. So what the heck is going on? Well, it turns out that the state has not enforced these provisions against churches or other houses of worship yet, but based on a publication by the state Civil Rights Commission it is understandable that some churches are concerned this might happen. The publication (with link included) is called, A Public Accommodations Provider’s Guide to Iowa Law. Like many such informational publications it has a Q&A section and in that section is the following:

“Does this Law [the Iowa Civil Rights Act] Apply to Churches?”

“Sometimes. Iowa law provides that these protections do not apply to religious institutions with respect to any religion-based qualifications when such qualifications are related to a bona fide religious purpose. Where qualifications are not related to a bona fide religious purpose, churches are still subject to the law’s provisions. (e.g. a child care facility operated at a church or a church service open to the public).”

          The publication does not have the binding force of law, and there has been no enforcement against houses of worship yet, but the implications are disturbing. First, let me be clear that I am a big supporter of both LGBT rights and religious freedom and Iowa can be justifiably proud that it has such an excellent record on protecting the rights of the LGBT community. The Iowa Civil Rights Commission generally does an excellent job, but the suggestion that a church or other house of worship could be a public accommodation, even if a literal reading of the statute suggests this possibility, is misguided and if enforced could easily run afoul of the the United States Constitution and Article I, Section 3 (and possibly, albeit less likely, Article I section 4) of the Iowa Constitution. Moreover, it defies common sense and damages LGBT rights more broadly because of the backlash it stirs up. I am on record suggesting that the Hobby Lobby case, which held that for-profit entities can be protected under the federal Religious Freedom Restoration Act, while viewed by many as a step forward for religious freedom, is actually a step backwards because it creates such immense backlash against religious freedom generally. Well, this Iowa interpretation of it’s public accommodation law is creating a lot of backlash and drawing attention away from far more important issues involving discrimination against members of the LGBT community than whether a church has to avoid offensive statements or change it’s bathroom access policies.
          Pretty much every legal scholar questioned by the media in the plethora of stories on this issue has correctly stated that any attempt by the state to regulate what is said in a church service or sermon is brazenly unconstitutional, and this is correct. The constitution gives rise to something called the Doctrine of Church Autonomy and a related doctrine called the Ecclesiastical Abstention Doctrine. The former requires that the government keep it’s nose out of the religious aspects of a religious entity’s existence and the latter doctrine requires that courts avoid deciding questions about ecclesiastical matters, such as what is a correct religious interpretation. The latter doctrine does acknowledge that courts can apply “neutral principles of law,” and perhaps the public accommodation law in Iowa would provide a neutral principle (although that is a complex and open question), but this would not preclude application of the doctrine of church autonomy. Iowa could not interfere with the content of a church service even if that service were “open to the public,” as most church services are. Moreover, having the state get involved in determining what constitutes “a bona fide religious purpose” itself could violate the Constitution.
          The two other concerns I have heard raised are whether church run schools could be regulated and whether churches could be required to provide access to their bathrooms based on gender identity. As for the first question the United States Supreme Court has recognized in several contexts that church schools are generally an important arm of the mission of the church, and even if you and I find some doctrines of some churches to be offensive on issues relating to LGBT status, it is not my place or that of a state government to tell a church what its doctrines and teachings ought to be. The bathroom question is harder because sometimes churches are used as polling places or rented out for non-church related business and it is quite likely that in these contexts the commission would be justified in enforcing Iowa law requiring bathroom access consistent with gender identity in public accommodations, but to the extent the bathrooms are in use by the church itself or a church school the doctrine of church autonomy would seem to preclude the government from requiring a church to violate it’s religious tenets regarding bathroom access.
          Finally, if I were the state of Iowa I would quickly settle these cases by acknowledging the above. The reason for this is that having these cases live and covered by the media will increase backlash against LGBT rights and the state is likely to lose on these issues anyway. Even if the state were not likely to lose, the practical damage caused to LGBT rights is significant if people think that churches could be required to alter what they say and do. This is like the Hobby Lobby case. It has wreaked havoc on attempts to promote religious freedom for traditional religious entities, because people are justifiably concerned that for-profit entities might be protected by religious freedom laws–even where those laws do not require this–and that third parties might be harmed or discriminated against. Iowa’s interpretation of it’s public accommodation law might be viewed as a step forward for LGBT rights, but I fear that it may create so much backlash that it will end up being a step backwards. Sometimes pragmatic compromise promotes stronger rights on both sides. I hope Iowa takes that path in these cases.

A Continuum of Being

One of the major commonalities between religious freedom and sexual freedom is that both go to the core of what it means to be a human being. Each side has a tendency to overlook the centrality that religion or sexual identity play in a person’s existence. There is an irony in this because sexual freedom and religious freedom can be viewed as sitting in similar positions on a continuum of freedom because each goes to the core of being, even if that fact is uncomfortable for some people on each side. In the following snippet from the book Freedom’s Edge I try to capture some of this commonality and the importance of walking in the shoes of those with whom we do not normally identify.

From Freedom’s Edge: Religious Freedom, Sexual Freedom, and the Future of America, pages 39-40:

“The term “sexual freedom” is not an ideal term. Clearly, LGBT and reproductive freedom is about far more than sex. Both LGBT and reproductive freedom concern one’s ability to be oneself, to be free, and to control one’s destiny. LGBT rights are about, among other things, being who you are without government interference or discrimination in the most fundamental aspects of life. Reproductive freedom is about, among other things, the ability to control your own body and to determine your own future. The term “sexual freedom,” as I use it in this book is shorthand for all of this.

There is a certain irony here. Recall in the last chapter that many progressive secularists assume religious freedom is about just faith. As we learned in the previous chapters, it is about far more than that. It is about who people are, how they experience life, and what they perceive to be essential to a fulfilled existence. Yet, each of these things can also be said about LGBT rights and reproductive freedom. It is just as unfair for people of faith to assert that sexual freedom is only about personal choices – unattached to core aspects of being – as it is for secularists to assume that religious freedom is just about protecting blind faith.

I understand that none of this is as simple as throwing aside our core assumptions, which is not simple at all, of course. Even if people were able to do that – and an open goal of this book is to challenge people on both sides to reflect on their horizons and how they perceive each other – fundamental questions about what matters in society, about values, and about morals may keep people from finding common ground. Agreement with specific elements of freedom on one side or the other may be hard to achieve. Yet, if we are unable to even perceive, and more importantly get a palpable sense of, the importance of a given
issue to one side or the other, compromise will be even harder.”

The Arlene’s Flowers Case

In March, 2016 the Washington Supreme Court agreed to hear an appeal of a trial court decision holding that Arlene’s Flowers and it’s owner, Baronnelle Stutzman, violated the Washington Law Against Discrimination and the Washington Consumer Protection Act. The violation arose when Baronnelle Stutzman refused to provide a flower arrangement to Robert Ingersoll, a long term client of Arlene’s Flowers, for his wedding to Curt Freed.

Stutzman had provided flower arrangements for Ingersoll for a variety of events, including birthday and Valentine’s day arrangements. She knew Ingersoll is gay and in a same-sex relationship with Freed, and had no objection to serving him and his partner until a same-sex wedding was involved. Therefore, she did not refuse to serve members of the LGBT community generally, but rather had a religious objection to same-sex marriage.

Yet the law is pretty clear that defenses based on conduct (marriage) versus status (being gay) are not valid; that is, discrimination based on conduct associated with a status protected by law is discrimination based on status. Washington law provides strong protection against discrimination based on sexual orientation. The best defense Stutzman had was based on Washington State’s strong constitutional protection for the free exercise of religion under its state constitution.

Stutzman is a devout Southern Baptist and she deeply believes that she can not support a same-sex marriage even if she has no issues with same sex relationships. This makes her case factually different from the Elaine Photography case from New Mexico, which gained a lot of media attention, because Elaine Photography refused to photograph any romantic event involving same-sex couples.

The trial court addressed many issues, but I think the key issue is the interaction between Article 11 of the Washington State Constitution, which protects the freedom of religion, and the Washington Law Against Discrimination. For reasons explained in the book Freedom’s Edge, I think free speech and free exercise arguments under the U.S. Constitution will always lose in these cases (and so far they have), but strong protection for religious freedom under a state constitution or state Religious Freedom Restoration Act may provide someone like Barronelle Stutzman with a possible, yet limited, defense.

Still, the trial court rejected Stutzman’s argument under Article 11 of the Washington Constitution because even though requiring her to do flower arrangements for a same-sex wedding substantially burdens her religion and conflicts with express tenets of her Southern Baptist faith the state has a compelling interest in prohibiting discrimination. Moreover, the court held requiring that businesses serving the general public not discriminate is narrowly tailored to serve the interest in prohibiting discrimination. It is this last question where the trial court may have been wrong.

I am not a fan of protecting religious freedom claims by for-profit entities because doing so opens a can of worms that has led to broad attacks on religious freedom more generally, including religious freedom for individuals and religious entities. Yet, if Stutzman loses the case her liability for legal fees might put her out of business, all because she stood by her faith in a manner that was not intended to be mean spirited or disrespectful towards Ingersoll and Freed.

Yet given the purpose of anti-discrimination laws enforcing those laws appears to be narrowly tailored to serve the government interest in prohibiting discrimination. Yet, if there were a less restrictive alternative Stutzman would have a chance. In factual situations similar to this there may be a less restrictive alternative, but Stutzman refused to allow it. That alternative is allowing someone else in the shop to do the arrangements. But she sincerely believed that as the owner she could not allow anyone to materially support the wedding under the auspices of her shop.

The only other option, which I propose in the book, would be for owners of sole proprietorships or small family shops to have a network of entities with whom they work so that the client can seemlessly, and without any additional cost, be served through an internal referral if a religious objection arises. Of course, it is too late for that accommodation in this case and it is unclear whether the accommodation would survive a legal challenge. So, pending her appeal to the Washington Supreme Court, Stutzman may be liable for millions in legal fees.

A copy of the trial court decision is posted here: Arlene’s Flowers Trial Court Decision

Welcome to Freedom’s Edge

Welcome to my blog! This blog is a place for dialogue about the relationship between Religious Freedom, LGBT Rights, and Reproductive Freedom. Unlike many people, I do not think religious freedom and sexual freedom must conflict with each other. In many situations both can be protected. In other situations one will prevail, but my hope is that through dialogue and bridge building we can work to foster greater understanding and empathy on both sides of the debate.