Religious Exemptions Are No Anomaly

by Stephanie Barclay

Religious exemptions create an “anomaly” within our legal system — an unfair special privilege to ignore the laws everyone else must obey. Worse still, protecting the rights of diverse religious claimants in our nation will “court anarchy” by turning our law into “swiss cheese” and inviting a tidal wave of litigation.

So goes one of the most common refrains raised by critics of religious exemptions. Some prominent Free Exercise cases have traded on these assumptions. And many of the recent criticisms of religious exemptions rely on these assumptions, including in anticipation of the Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission case the Supreme Court will hear next week. But are these arguments really accurate?

In a forthcoming Boston College Law Review article with Professor Mark Rienzi, we point out that courts frequently provide exemptions for other First Amendment claims against generally applicable laws, particularly when it comes to expressive conduct.

Notably, when the Supreme Court talks about exemptions in other contexts, it uses terms like “restrained,” “surgical,” “modest,” and “preferred method of constitutional adjudication.” It’s hard to square that with the idea that exemptions somehow morph into a “get-out-of-the-law-free card” simply because they arise in the context of religious beliefs. And overall, our new study reveals that requests based on religious objections remain much less likely to lead to invalidation of government action than speech objections do. Religious cases are less than a third of all such cases. And even after Hobby Lobby, religious cases as a percentage of the total reported case load appear to have actually decreased.

But what about exemptions from anti-discrimination laws? This issue has prompted some of the most virulent backlash against religious exemptions to generally applicable laws, and it is the issue at the heart of the upcoming Masterpiece case. Here again, the Supreme Court’s cases about expression point the way.

One of the frequent objections raised is that such exemptions are particularly concerning because of the dignitary harm they would inflict on third parties. However, in the free-speech context, the Supreme Court has consistently held that a government’s desire to protect people from emotional harm — even far more acute emotional harm than is present in many of the wedding-vendor cases — does not constitute a compelling government interest.

Others such as Professor Joseph Singer have argued that the analysis changes, and anti-discrimination norms must essentially always prevail, when dealing with commercial places open to the public. Is there really something uniquely unassailable about the government’s interest when a service is being offered to the public? To answer that question, one must also answer the following: Could the government require a baker who supports Black Lives Matter to bake a Confederate flag-themed cake for a rally being held by the Aryan Nations church? Or could the government force LGBT business owners to bake a cake for a Westboro Baptist Church protest? Does the fact that these bakers offer similar cakes to the public really change the analysis?

It turns out these are not simply hypothetical thought experiments. After the recent neo-Nazi demonstrations in Charlottesville, a swarm of businesses (including Google, Airbnb, Uber, and PayPal) reacted by refusing to continue providing services to white-supremacist organizations. And in Masterpiece, the Colorado Commission allowed three bakers (including LGBT business owners) to refuse a religious customer’s request to create custom cakes with religious messages criticizing same-sex marriage. If one thinks that any of these businesses are justified in denying their services to groups or events to which they object, then one must acknowledge that the government does not have an unassailable interest in coercing any product or service that is already offered to the public.

To be sure, there are some cases dealing with services or products offered in the public sphere where the government would prevail over First Amendment objections. But in the public accommodation context, the foundational government interest capable of trumping First Amendment objections is not avoiding dignitary harms or conscripting public vendors into government service. It is, as the Court has recognized, the government’s interest in “remov[ing] the barriers to economic advancement and political and social integration that have historically plagued certain disadvantaged groups.” And the unanimous Supreme Court in Hurley has already pointed to factors that should be assessed when the Court must balance First Amendment rights against the government’s interest. Specifically, (1) does the public accommodation exclude a class of individuals “as such” (which would create a more significant barrier to economic or political advancement), or does the public accommodation have a more discrete objection to something like a particular “message” or event; and (2) is the public accommodation “an abiding monopoly of access,” or does the would-be customer have a “fair shot” at obtaining the service elsewhere.

The answers to these questions will vary depending on the evidence the government has marshaled regarding a market failure it needs to address, the economic reality in which the conflict arises, and the breadth of the First Amendment objection at issue. And when courts balance these important interests, the religious objector will not always win. But the important point is that in these balancing scenarios, the religious objector’s rights should be given some weight, and the scrutiny should be just as strict regardless of whether the objection that triggers this analysis is based on speech or religious grounds. To support instead a double standard that treats religious exercise as less deserving of protection than any other First Amendment right would be the true constitutional anomaly.

— Stephanie Barclay is legal counsel at the Becket Fund for Religious Liberty and author of Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions with her colleague and law professor Mark Rienzi.

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