I deeply appreciate the discussion in the comments on my last post. The tangled relationship between anti-discrimination laws and religion is a subject that is worth some real thinking.
Some people are wrestling with how selling a cake got to be a constitutionally (and statutorily) protected “exercise of religion.” There’s a reason this is confusing. Religious believers themselves have never really been able to articulate the connection.
I think the problem began back in the 1990s, when religious landlords first began claiming they were exempt from state laws prohibiting marital status discrimination. In 1996, I represented a heterosexual woman in the first California Supreme Court case to deal with the exemption (Smith v FEHC). The religious landlady objected to unmarried couples living together, but California law prohibited marital status discrimination in housing. The landlady’s claim was that by renting her property to people who were obviously sinning (there was no proof of any sexual activity, and she never tried to provide any, but the court accepted the obvious implications), she was “facilitating” their sin. And in her mind, this was, itself a sin. So the law was forcing her into participating in the sin her tenants were committing.
This was a novel idea. Previously, court cases had tended to focus on things that a religion mandated or prohibited (such as working on the sabbath, forced public schooling, etc.). But in Smith, the landlady’s claim of “facilitating” the sins of others by engaging in commercial activity was neither. While she provided testimony that one branch of her religion (Presbyterian) thought that facilitating the sins of others was, itself, a sin, another, much larger branch of the same religion disagreed and felt that abiding by general laws like this implicated no moral condemnation.
The problem is that courts can’t go around deciding contested theological questions. They must exercise an almost complete acceptance of any religious belief, as long as it is sincerely held (which Mrs. Smith’s was). The U.S. Supreme Court has been very clear about this: A religious belief “. . . need not be acceptable, logical, consistent, or comprehensible to others in order to merit [free exercise] protection.”
I argued that the protection of the “exercise of religion” ought to be cabined by something. While courts must defer to religious beliefs, they can examine actions that are in conflict with laws. Renting apartments would never have been understood by the framers as the kind of exercise of religion they had in mind.
That argument was shot down in less than a paragraph, and that’s probably the right answer. The problem I saw in the commercial world of religious believers picking and choosing which sins they subjectively felt they were “facilitating” has clearly come to pass. And there’s little doubt that this will be deployed by individual believers without much theological consistency or precision. But the role of courts is and should be limited whenever religious issues are being fought over.
There will always be individuals who will distort and mishandle their religion. But the danger of the government second-guessing religious believers is a far more profound concern. This will place a burden on lesbians and gay men in some — maybe a lot — of places in the country. But in the world today, they will not only have options, they will have allies. This is no small fact.