Religious freedom and discrimination

Introduction

I'm writing a two part series in how to think about the new Religious Freedom law discussions.  The first will cover the more practical considerations of "how to think about" the laws and the situations that they are obviously contemplating.  The second post will cover more "first principles" on First Amendment rights and history to give some context.

The federal RFRA (Religious Freedom Restoration Act) was passed in the wake of a 1993 case (Employment Division v. Smith), which upheld the firing a Native American for failing a drug test due to religiously motivated peyote smoking.  Justice Scalia, speaking for SCOTUS in Smith, said that generally applicable laws that incidentally (as opposed to purposely) impair religious exercise are not impacted by the 1st Amendment.  The states and the federal government can, but are not required to, make exceptions. RFRA attempted to change this decision by making the government have to have a compelling interest.  This was upheld in regard to the federal government, but states can do as they wish.  About 20 states have passed laws similar in some ways.

The more recent--and much more controversial--laws took a much larger step and said that religious belief could be used as a defense in civil matters, most importantly in denying service to some person or group based on a religious belief.  These laws were very specifically targeted to allow Christians to deny service to homosexuals -- a photographer should not be forced to shoot a gay wedding, nor should a cake decorator be compelled to bake gay people cakes, and hotels shouldn't be forced to host a gay wedding, and restaurant owners should not be forced to let gay people in, and in general people shouldn't have to engage in commerce with gay people if they don't want to.

The laws are much broader than that, though, and included a possible religious exception to any lawsuit.  Any sincerely held religious belief, no matter how important to the religion, applies.  Broadly interpreted, the federal law would say "I can ignore any federal law or regulation if my religious belief says so and the government doesn't have a compelling interest that's more important."  The more controversial proposals for state laws go further and suggest that any legal matter, including laws affecting civil rights or contract or any civil suit, can be defended against with a religious belief.  That potential scope is boggling.

I'll get more into the depth of silliness those laws might create, and how historically odd they are, in my next post.  Here, let's talk about the values one might consider.

Religion

What is a religion?  When many people think of religion, they often immediately assume their own, and then, belatedly, they may consider other ones.  In Arkansas, that means they think religion = Christianity.  But it doesn't, legally.  The problem is defining the bounds of the term.  If only one person believes a religion, does it count?  If not, why not, and how big a group is required?  Does a belief in multiple gods count?  What about none?  What if you believe that all worldviews have a place, and try to embrace that notion?  If you look at the prisoner cases, this is a tough term to define.  In my opinion, it is almost tough enough that we punt.

Who can have a religion?  In most of the popular religions, there is a notion of being "saved" and making "good" decisions based on an individual moral code.  People go to heaven or hell, but computers and insects do not.  Given this distinction, does it make sense to apply the notion of "religion" to a government-created entity like a corporation?  If so, should entities like, for instance, churches and mosques be given the same sorts of consideration as, say, Exxon Mobile or Nike?  Should we worry about whether there are current or potential shareholders that might disagree (think "closely held corporations")?  To me, a non-profit company organized around a religious notion -- like the First Baptist Church of Little Rock -- has some claim to a religious dogma, while a large for-profit company does not.

How sincerely do you have to believe it, and what must be the source of that belief?  If I think that being gay is wrong, but my congregation says it is not and the text from which I say I derive my belief contains many other ills that I blithely ignore, does that matter?  Who gets to decide?  What level of sincerity is required, and what is the metric for sincerity?

On the other hand, should I be forced into joining a religious ceremony with which I disagree?  If I think it is sick and depraved to sacrifice a goat, but I offer butcher services, can I tell the Satanist (or old-school Christian) no?  Can I be made to officiate a polygamist wedding if I'm licensed as a minister in Arkansas?  (Should we be licensing ministers, anyway?)  Should I have to take photos and provide the proofs on my website of a ceremony that I find abhorrent and against God's plan?  Should I have to remove a baby boy's foreskin if I'm a doctor?  What about similar but more destructive anatomic changes to a girl?  I think there are different answers to these questions, but being forced to personally join an elective religious ceremony does seem to cross a line.

Commerce

Whether you think commerce is different is a big piece of this puzzle.  Is it okay to treat activities in commerce different from other activities?  Can we mandate that a food maker reveal ingredients?  Can we say that lying about what your product does is illegal?  Can we limit the fields a company can go in?  Can we forgive economic sins?  Can we have laws that say corporations, by their nature, are greedy, and directors of those corporations must take improved shareholder profit as the overriding goal of a company?  Can we say that, if you open up your doors to the general public, you cannot deny service based on race, or sex, or religion?

To me, this is an easy one.  Yes, we can, and virtually everyone agrees.  The extent to which we can may be influenced by the special gifts given to companies by government (existence, limited liability, tax advantages, etc.); the transaction costs of individuals needing to discover which organizations will serve them; the liberty cost in mandating people must open their doors to everyone regardless of status; collateral market costs if discriminatory practices are allowed (think Walmart warning Arkansas); the historical reasons for preventing discrimination against certain groups; etc.  This gives a lot of nobs for a reasonable debate.

Another aspect of commerce to consider is what the product or service being sold represents.  On one extreme, you have a completely standardized widget sold anonymously over the internet.  At the other extreme you have a completely customized service requiring intimate personal involvement and the reputation of the service provider.  The more customized, intimate, and branded a product or service, it seems the more likely there would be reason to have this value weigh more heavily.

We should also consider the impact to the market.  Is this the sole provider of a good or service in the area?  For instance, if you live in New York City and need to buy a bag of Doritos, you can probably find another provider more easily than if you live in Scott, Arkansas.  The amount of customization of the service matters here, too -- there is only one hotel that sits on this spot, only one restaurant with this chef, etc.

And we also might consider whether allowing certain types of discrimination devalues a community.  Arkansas was replete with "sun down towns" for the first half of the twentieth century.  Harrison, Arkansas, still has to fight the stigma attached with its heavy KKK presence.  Walmart and Acxiom did not want to subject their customers and employees to possibly discriminatory behavior.  These are non-trivial concerns.

Free speech and the right to associate

When is it okay to force someone to speak to someone else, such as is normally required in commercial interactions?  What about to be with people they don't like?  Should I have to let someone wearing a Klan outfit into my store?  Someone wearing a shirt that says, "White people are evil"?

What if I'm a worker?  Does my employment status mean that I should act as if I believe what my employer believes?  Do I have to refuse gay people service?

The competing values here are societal tolerance and a smoothly functioning economy versus individual liberty.  Most right-wing respondents would say this is easy:  individual liberty wins, but employers can tell their employees what to do because this is a clear contract and the employer can walk out at any time.  On the other side, the argument is that choosing to engage in commerce that is open to the general public means that you cannot then exclude based on someone's status.  If they come into your store and are not acting like jerks, you cannot exclude them because you think they shouldn't be black or white, gay or straight, young or old, etc.  You made your choice to let them in when you opened your doors.

Conclusion

I think that religion is really tough to define, almost to the point of being undefinable.  Because our 1st Amendment makes us do so, though, I think we have to do so in a way that does not preference one religion (i.e., Christianity) over others.  We also cannot actively persecute religious belief.  This means, in my opinion, that we write laws that are generally applicable, and then we sometimes make specific statutory exceptions for items that strongly impact a group yet result in little societal harm.  This can be peyote, or conscientious objection, or ...  We need to keep in mind that all laws apply to everyone, however, and nobody gets to use his conscience to be exempt from a generally applicable law -- we would cease to be a government of laws, at that point.

When you open your doors to the general public, you should open them to all people, regardless of status.  That keeps the wheels of commerce rolling smoothly, and it avoids Woolworth-esque scenes.  That said, I think there is room for exceptions based on how personalized and branded a service is, especially if the service can be reasonably gathered elsewhere.  I also think that being an active participant in someone else's religious ceremony is certainly problematic.  The only problem would be defining what "religious ceremony" meant, but that seems a bit easier than defining religion itself.

I also think there is room for exceptions based on government grants of privileges.  Maybe sole proprietors or partners who do not use a corporate liability shield could be granted some exemptions, but if they choose to be sheltered by the government, they choose to follow the normal rules.

Oh, and I wouldn't mind seeing another type of experiment:  Allowing businesses to discriminate on status, but requiring those statuses to be publicly viewable on some website, and also requiring those exclusions to be prominently displayed on all entrances.  This would be a bit problematic with the 1st Amendment, but probably not as much as requiring entrance.  I suspect that most businesses would decide not to opt in because of the terrible press this transparency would bring.  It could certainly go in other directions, though, which is why I think it would be an interesting experiment.  I prefer experiments that preference liberty, when possible, even hypocritical liberty like "Jesus wants me to be a single-sin bigot," so this sort of law would be high on my preference list, if it was successful.

(My next installment will cover more first principles and constitutional history.)

Thoughts?