Businesses, Religion and the Law

Religious freedom.  We've learned during the last ten days or so just how complex that notion can be.  Enactment of a version of the Religious Freedom Restoration Act – RFRA – in Indiana didn't bring praise from Indiana churches, but instead outcries from the gay rights community that the law would evoke discrimination of them in the Hoosier State.  Elsewhere, on March 27, a woman in Richland, Washington, had a summary judgment imposed on her by the State of Washington because she would not, according to her Southern Baptist beliefs and practices, furnish the flowers for the wedding of two men.  There are other examples and the whole controversy feels totally ironic in this Easter Season.  We want to go through some of the history of the broader issues to understand them better; as you know, I'm an economist, not a lawyer or historian, so I hope what follows is as accurate as possible.

Pilgrims came to this land 395 years ago because they wanted to worship differently and live by different rubrics than those required at that time by the Church of England.  One hundred and seventy-one years later, in 1791, the concept that the people of the United States could worship as they choose was written down officially in the Constitution's First Amendment.  Congress cannot "establish" an official religion, nor can it "[prohibit] the free exercise thereof".  Indeed, this is the first item in the First Amendment, ahead of freedoms of speech, of the press, of association and petitioning the government.

In 1947, a Supreme Court ruling extended the First Amendment applications of the "establishment clause" from just federal government relations with religions to those of state governments.[1]  In that ruling, the State of New Jersey was allowed to pay for transportation of children to parochial schools, under the logic that everyone benefited when children could get to a school.  The payments from the state did not violate the "establishment" provision of the Amendment; they were seen as supporting the children, not the religion itself.

Then, in 1990, the State of Oregon refused to give unemployment benefits to two Native Americans because they had been fired for cause from their jobs at a drug treatment center: they had smoked peyote in a religious ceremony.[2]  The Supreme Court agreed with Oregon, that the use of the hallucinogenic drug was absolutely prohibited by state law.  This case elicited an offsetting response from the U.S. Congress in 1993, as it enacted the federal government's "Religious Freedom Restoration Act" – RFRA.[3]  However, in 1997, after yet another Supreme Court test[4], it was found that this law applied only to the federal government, not to states.  So state legislatures began enacting their owns RFRAs; before the latest controversies, 19 states had these laws.   The need for such state laws apparently became more acute after the Hobby Lobby ruling in 2014; this said that closely held corporations as well as individuals, can assert religious rights.  It, of course, pertained to the contraception provisions in the Affordable Care Act.  Other small businesses now are relying on the federal RFRA as they argue that their religious views mean they shouldn't provide goods and services for same-sex weddings, but these and other religious practices may actually depend on the existence of state-level RFRAs, which prompted Indiana and Arkansas to want to pass them.[5]

Howard Friedman, writing in the Washington Post last week[6], indicates that the surge of gay rights and rapidly spreading legalization of gay marriage in particular in recent years has contributed to the brouhaha over these two latest states' laws.  Some states, including Washington, have anti-discrimination laws protecting LGBT persons that may trump the assertion of religious rights.  Indiana has limited versions of anti-discrimination laws, while it appears that Arkansas has none.[7]

The commotion over the Indiana and Arkansas laws, while unexpected, has in fact helped improve the legislation and those legislatures have quickly passed statements that try to make clear that their RFRA laws do not constitute license for people and businesses to shunt aside associations and transactions with LGBT individuals.

All this seems to leave some business owners in a quandary.  And me, too, actually.  Let's go back to the florist in Richland, Washington, Barronelle Stutzman of Arlene's Flowers.  She seems stuck.  The Washington State anti-discrimination law is evidently quite clear that businesses engaged in "public accommodation" cannot "[c]harge a different rate or offer different terms and conditions of service" to groups of people designated in the law, which include "sexual orientation or gender identity".[8]  But the Southern Baptist Convention, to which Ms. Stutzman belongs, is one religious group that continues to oppose gay marriage, along with the United Methodist Church, many American Baptist churches, the Lutheran Church-Missouri Synod, the Mormons and the Roman Catholic Church, among others.[9]  Her immediate response has been to stop providing flowers for all weddings, and that would appear to satisfy the law's requirements of treating all customers the same way.  Otherwise, it would seem that in order to follow strictly her belief in her own church's position, she would even have to close or to move to a state where gay marriage is not [yet] acceptable.  Indeed, the hoopla in Indiana over the pizzeria whose owner responded to a newspaper survey that it could not furnish food for a gay wedding reception did cause it to close, although it was set to reopen today and wound up being supported by huge donations to a totally independent crowdfunding site – at least one of which donations came from a gay woman who operates her own small business.[10]

So religious freedom is complex.  It is impossible for specific pieces of legislation to allow for all the divergent possibilities, which, as we see, involve different Christian groups with different interpretations of Scripture along with other religions' practices, amid the shifting structures of secular society.  "Freedom of religion means freedom to hold an opinion or belief, but not to take action in violation of social duties or subversive to good order."[11]  "Thus, the right to have religious beliefs is absolute, but the freedom to act on such beliefs is not absolute."[12]  At least in the United States of America, though, we do strive to do it right and to encompass everyone's beliefs.

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[1] Everson v. Board of Education (1947).  Cited in Wikipedia's discussion of the First Amendment to the Constitution: http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution and described more fully in http://en.wikipedia.org/wiki/Everson_v._Board_of_Education, both accessed April 7, 2015.

[2] Employment Division v. Smith (1990).  Cited and explained in Ashby Jones, "Unpacking Indiana's 'Religious Freedom Law'", The Wall Street Journal, Law Blog, March 30, 2015.  http://blogs.wsj.com/law/2015/03/30/unpacking-indianas-religious-freedom-law/.  Accessed April 7, 2015.

[3] Ashby Jones, op. cit., and Howard M. Friedman, "10 things you need to know to really understand RFRA in Indiana and Arkansas," The Washington Post, April 1, 2015. http://www.washingtonpost.com/news/acts-of-faith/wp/2015/04/01/10-things-you-need-to-know-to-really-understand-rfra-in-indiana-and-arkansas/.  Accessed April 7, 2015, originally referred by an entry on The Episcopal Café:  http://www.episcopalcafe.com/indiana-passes-rfra-fix/ .

[4] City of Boerne v. Flores (1997) Cited in Ashby Jones, op. cit.

[5] Mike Pence, "Ensuring Religious Freedom in Indiana", The Wall Street Journal, March 31, 2015.  http://www.wsj.com/articles/mike-pence-ensuring-religious-freedom-in-indiana-1427757799. Accessed April 7, 2015.  Yes, that's the Governor of Indiana, writing in a WSJ op-ed.

[6] Friedman, op. cit.

[7] http://en.wikipedia.org/wiki/LGBT_rights_in_the_United_States Accessed April 7, 2015.

[8] Washington State Human Rights Commission, "Washington State Law Prohibits Discrimination in Places of Public Accommodation", http://www.hum.wa.gov/documents/Brochures/PA091407B.pdf.  Accessed April 7, 2015.

[9] Pew Research Center, "Where Christian churches, other religions stand on gay marriage," March 18, 2015, http://www.pewresearch.org/fact-tank/2015/03/18/where-christian-churches-stand-on-gay-marriage/.  For other background, also see http://www.pewresearch.org/fact-tank/2015/03/25/how-the-u-s-compares-with-the-rest-of-the-world-on-religious-restrictions/, March 25, and http://www.pewresearch.org/fact-tank/2015/03/30/businesses-serving-same-sex-couples/, March 30.  All accessed April 7, 2015.  The last item, survey results on what people believe about whether business should be required to serve gay couples shows a break in public sentiment of 49% for requiring them to do so and 47% that businesses should be allowed to refuse such services.  The text mentions two court cases, a baker in Oregon and a photographer in New Mexico.  The text also shows a demographic breakdown of the survey results.

[10] http://sanfrancisco.cbslocal.com/2015/04/07/ca-gay-woman-courtney-hoffman-who-donated-20-to-fundraiser-for-indiana-memories-pizzeria-that-wont-cater-same-sex-marriages-urges-tolerance/ .

[11] Reynolds v. United States (1878).  Cited in the Wikipedia article on the First Amendment.  See footnote 1 above.

[12] Wikipedia article on the First Amendment.  See footnote 1 above.

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For more background on the underlying issue of gay rights, religion, and business practices see Michael Kent Curtis, "A Unique Religious Exemption from Antidiscrimination Laws in the Case of Gays?  Putting the Call for Exemption for Those Who Discriminate Against Married or Marrying Gays in Context", Wake Forest Law Review, April 5, 2012.  http://wakeforestlawreview.com/2012/04/a-unique-religious-exemption-from-antidiscrimination-laws-in-the-case-of-gays-putting-the-call-for-exemptions-for-those-who-discriminate-against-married-or-marrying-gays-in-context/ Accessed April 6, 2015.  In a lengthy analysis, Curtis draws the analogy to racial desegregation, which some had argued in the 1950s also faced religious constraints.