Does religious freedom include the freedom to discriminate?

Indiana is the latest, the 20th state, to pass a "Religious Freedom" law. They all are unnecessary. What we need instead are better anti-discrimination laws.

Indiana Gov. Pence signing the state's controversial RFRA.
Governor Mike Pence, R-Ind., at RFRA's recent ceremonial signing. But, for the Governor and the legislature, the fun had just begun. (Photo via Gov. Pence's Office and The Heritage Foundation)

WASHINGTON, April 5, 2015 − If sued, should a business that discriminates against gays be allowed to use religion to defend itself? The judicial analysis is not clear.

Bad or unnecessary laws are often passed in reaction to sensational or outrageous events. Such was the case in 1993, when Congress passed and President Clinton signed into law the Religious Freedom Restoration Act (RFRA). After two Native Americans in Oregon were fired from their jobs at a rehabilitation clinic because they had consumed the hallucinogenic cactus peyote, they were denied unemployment benefits. They sued the state, claiming that peyote was part of their religious culture. They lost. Outrage followed, and the law was enacted as a remedy, specifically envisioning that it would address the rights of minority religions.

The 1993 law provided that “the government [emphasis added] shall not substantially burden a person’s exercise of religion.”  In order to “burden” −  meaning the government can impose on an individual’s religious beliefs − the specific burden must be necessary for the “furtherance of a compelling government interest.” A compelling interest relates directly to core constitutional issues. If a law does burden, it can only do so in the least restrictive way possible in order to further the government interest.

Not needed.

The U.S. Constitution already provides all of the protections for religious freedom that are needed, particularly when these protections are coupled with anti-discrimination laws.

Nonetheless, over the last 22 years, 19 states have followed that lead by enacting laws similar to the 1993 federal law. The gist of these laws is to assure that in carrying out its work, the government does not prohibit the practice of individual religious beliefs. Stated in another manner, these laws were designed to provide protection for the practice of religion undeterred by government policy.

Enter Indiana, which recently became the 20th state to fashion a “religious freedom” law. The Indiana law was even broader in scope, adding private businesses to the protected class. Indiana’s law protected private businesses if they discriminated against gays.

Against all logic and straight legal analysis, however, four United States Circuit Courts of Appeals have ruled that federal law can be used as a defense in cases involving private parties. Two other circuits, following the language and construction of the federal law and without contorting its meaning, have said “no”: private businesses are not protected by their religious beliefs if they discriminate.

Last year, the Supreme Court offered a narrow ruling allowing a closely held corporation to discriminate based on religion. Burwell and others sued Hobby Lobby Stores, Inc., an arts and crafts company owned by the Evangelical Christian Green family because the company refused to provide health insurance that included contraception coverage for its employees, as required in the provisions of the Obamacare legislation.

In its defense, the company cited its owners’ religious beliefs. The court ruled in Hobby Lobby’s favor, stating that, in certain situations, a private for-profit business could deny to its employees a specific health insurance benefit (contraception) otherwise required by the law. In other words, the company could discriminate against the employees because the company’s owners’ religious beliefs did not comport with the use of the specific coverage.

Indiana’s law, before its hasty revision and amending last week, would have allowed businesses to use religion as a defense against discrimination lawsuits filed by gays. If this logic seems convoluted, it is.

You can discriminate, and, if sued, you can defend yourself by saying what you did offends your religious beliefs. Again, four appellate courts and the U.S. Supreme Court in Hobby Lobby seem to agree. The uproar surrounding Indiana’s law prompted Indiana to make the aforementioned revisions to its original RFRA act, enacting protections based on sexual orientation. Indiana stopped short, however, because it did not include sexual orientation as a protected class in its anti-discrimination law.

A review of the “religious freedom” court cases shows that in fact, some have benefited (when the entity said to be discriminating is the government). Most often, however, private parties who have used religion to excuse discrimination have lost.

A Muslim prisoner was allowed to grow a short beard. A Santeria priest was allowed to sacrifice a goat on special religious occasions. A Native American boy was allowed to wear long hair to school. These “victories” were all government-connected.

In 2006, a lesbian woman in New Mexico sued a photographer she had contracted with, but who later refused to photograph her commitment ceremony. The photographer did so citing the company owner’s religious beliefs as the reason.

The discrimination suit against the photographer was successful, despite the photographer’s arguments that the religious freedom law applied. The court ruled the law did not apply, and the case never made it to trial, because the dispute existed between two parties and not a government entity. This judge should have been the sole decider in the Hobby Lobby case.

If the New Mexico case had been brought before the court in Indiana under the first version of that state’s RFRA, it would have been allowed to proceed to trial.

Indiana’s law, as first passed, actually justified discrimination in the name of religion.

The federal government, and all of the states with religious freedom laws, should repeal those laws. They are unnecessary; and, as seen most recently in Indiana, the wording of the laws can lead to unnecessary angst, anger and debate. Every state should pass comprehensive laws that prohibit discrimination in all of its forms, including sexual orientation.

Again, the revised Indiana law, while technically an improvement to the original law, still does not include sexual orientation in its anti-discrimination coverage.

The United States was the first country in history to recognize that religion and government needed to be separate. The phrase “separation of church and state” is a familiar one endorsed by most (where church means religion). That is because history has shown that when a particular religion is officially established or endorsed by the government, others who practice different religions, or those who do not practice any religion, become second-class citizens.

The Constitution of the United States provides for freedom of religion. It says “Congress shall make no law respecting an establishment of religion,” and it provides that “no religious test shall ever be required for holding office in the United States.”  Nonetheless, many candidates for public office at every level talk about their “faith,” often to signal their positions against gays, abortion and other concepts dear to their perceived voting base.

Despite the absence of explicit language, it is clear our framers believed in the separation of church and state.

Certain influential individuals, nonetheless, believe church and state should not be so separate. In 2012, Rick Santorum, who was running for president, said the absolute concept of separation “makes me want to throw up.”

During his 1984 re-election campaign, President Ronald Reagan had to be reminded that our elected officials are “defenders of the Constitution,” not “defenders of the faith.”

Alan Dershowitz, writing in his book “Taking The Stand,” says:

“’Faith’ has become synonymous with ‘values’ in the minds of many, although there is absolutely no correlation. Indeed, the ‘values’ espoused by some of the people who would impose their faith on others are highly questionable. They include denying gays the equal protection of the law; denying women (and young girls) the right to choose abortion, and sometimes contraception, even in compelling cases; and, often, other conservative political ‘values’ that have nothing to do with religion, such as low taxes, the right to bear arms, the death penalty and widespread censorship.”

Dershowitz then hits the nail on the head:

“The debates over these issues, especially gay rights and the right to choose abortion, have become wedge controversies that are unduly influenced by the churches in violation of the spirit, if not the letter, of our Constitution.”

It comes as neither a surprise nor a coincidence that on the cusp of our country’s complete legal acceptance of gay rights and gay marriage, there is more deployment of religious freedom laws to deny services to same-sex couples. Such denials are not religious, despite all the rhetoric. They are purely and simply discriminatory.

Tim Holbrook, a law professor at Emory University, says:

“Many states are using the laws to carve out exceptions to allow the denial of services to same-sex couples. The timing is beyond a coincidence. We are seeing an interest at the same time same-sex marriage is coming forward.”

Comprehensive anti-discrimination laws are needed in every state. Contrariwise, “religious freedom” laws should be repealed everywhere. Besides accomplishing nothing legally, they promote litigation. In an interview on CNN, Bill Levin, the founder of the First Church of Cannabis, said he planned to test the law, believing that it protects his right to smoke pot. Convoluted? See Burwell v. Hobby Lobby Stores, Inc.


Paul A. Samakow is an attorney licensed in Maryland and Virginia and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website

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  • Conservative Mark

    Discrimination or discernment?

  • crescentfang

    From a religious point of view, Marriage is a sacrament. Requiring a religious person to be involved in a gay marriage is like requiring them to attend a service in a different sect’s church or a black mass. They have a right to refuse. There wouldn’t be any public support for the florist involved if the question was simple discrimination but there clearly is on this issue. What the gays are demanding here is very different from simply buying flowers or some other product in a store. They would be wise to remember that the Christians ISIS executed were probably offered the chance to convert to Islam and refused. The gays are starting a war that will cost them the hostility of a large fraction of the population.