Religious Freedom, Bias Protections: Something’s Got to Give

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By Jay-Anne B. Casuga

More than half of all states have religious freedom requirements that could allow more employers to seek religious exemptions from state workplace anti-discrimination requirements and other employment laws.

“On the whole, they have been under-used and under-enforced,” Douglas Laycock, a professor at the University of Virginia School of Law who specializes in religious liberty law, told Bloomberg BNA. “But the current moral conflict over sexual matters, and the expansion of government regulation, has created the potential for such claims.”

The application of state religious freedom laws in the employment context is uncommon. State laws, many of which are modeled after the federal Religious Freedom Restoration Act of 1993, have been invoked more often in business-consumer settings, such as when bakers decline to cater a same-sex wedding ceremony.

But newer court cases interpreting the federal religious freedom law in workplace settings may lead to greater reliance on state versions by employers.

For example, state religious freedom laws could be used by some companies to pursue an exemption to state requirements that expressly prohibit discrimination based on sexual orientation or gender identity or that require coverage of contraceptive costs in health insurance plans.

Currently, 21 states have religious freedom laws, according to Bloomberg BNA research and information from the National Conference of State Legislatures.

Courts in another 10 states have interpreted their state constitutions as providing RFRA-like provisions. And at least seven states are considering legislation to either enact or codify a religious freedom law or modify or expand an existing one.

“We certainly do anticipate more litigation moving forward,” Sarah Warbelow, legal director of the Human Rights Campaign, told Bloomberg BNA. The HRC, an organization that advocates for civil rights protections for lesbian, gay, bisexual and transgender individuals, has opposed state RFRA laws.

More Litigation? Not So Fast

But some religious freedom law supporters and other neutral observers disagree that more challenges to employment laws will arise as more states consider enacting their own versions of RFRA.

“I don’t think there will be many,” Kim Colby, director of the Christian Legal Society’s Center for Law and Religious Freedom, told Bloomberg BNA. The center was one of the architects of the federal RFRA.

Enactment of a particular piece of legislation doesn’t ever mandate a particular result, Jonathan Griffin, a program principal with the National Conference of State Legislatures, told Bloomberg BNA.

The effect of state religious freedom laws in the employment context will be determined on a case-by-case basis, Griffin said.

Little Overlap for Potentially Conflicting Laws

At present, there’s not much overlap between states that enforce religious freedom provisions and those that have LGBT anti-bias laws or “contraceptive equity” laws.

Of the 31 states with RFRA-type provisions, only nine expressly bar workplace LGBT discrimination and about 12 have laws similar to the contraceptive mandate in the federal Affordable Care Act, according to Bloomberg BNA research and information from the National Women’s Law Center.

All but three of the states with “contraceptive equity” laws include express religious refusal clauses for religious employers or insurers whose beliefs bar contraceptive use.

The ACA’s contraceptive mandate was at the heart of the U.S. Supreme Court’s split 2014 decision in Burwell v. Hobby Lobby Stores Inc.

The justices held that closely held for-profit corporations are “persons” under the federal RFRA and can deny employees contraception coverage based on a religious objection.

States Must Show 'Substantial Burden.'

Specifically, the court found that such corporations will be exempt from a neutral federal law of general application, such as the ACA’s contraceptive mandate, if they show that the law substantially burdens the free exercise of their sincerely held religious beliefs, and the government fails to show it pursued the least restrictive means to further a compelling interest.

Each state has applied its own take on the federal RFRA in crafting the state versions, Colby said. Some states don’t define a “person” similarly to the federal RFRA, she said, which could cut down on Hobby Lobby-like challenges at the state level.

Laycock of UVA agreed that the application of state religious freedom laws similar to Hobby Lobby does not arise very often.

“Most businesses are secular and most business regulation is secular,” he said. “There have been very few business claims over the decades under either RFRAs or state and federal constitutions.”

Challenges to LGBT Bias Laws More Likely

However, the use of religious freedom laws as an exemption to LGBT anti-discrimination laws “could easily, and more plausibly, arise under state law,” Laycock said.

In August, a federal district court dismissed a discrimination lawsuit brought by the Equal Employment Opportunity Commission on behalf of a fired transgender funeral home worker ( EEOC v. R.G. & G.R. Harris Funeral Homes, Inc.).

Following Hobby Lobby, the court found that the funeral home established under the federal RFRA that enforcement of Title VII of the 1964 Civil Rights Act would substantially burden its ability to conduct business based on its owner’s sincerely held religious beliefs.

The court further held that although combating discrimination is a compelling government interest, the EEOC failed to show it pursued the least religiously restrictive means of furthering that interest.

Two Views of Title VII

Title VII doesn’t expressly bar discrimination against LGBT workers. During President Barack Obama’s administration, the EEOC took the position that Title VII’s prohibition against sex discrimination includes sexual orientation and gender identity, but that issue remains open in the federal courts.

However, nine states with religious freedom laws do expressly prohibit LGBT workplace discrimination.

“We’re deeply concerned that Harris Funeral Homes is the first indicator of how individuals or organizations intend to use RFRA,” Warbelow of the HRC said. “Obviously, state courts don’t have to apply state RFRAs identically to the federal RFRA.”

But to the extent that state laws are written similarly to their federal counterpart, federal court rulings applying the federal RFRA are “going to be persuasive” on state courts applying state religious laws, Warbelow said.

Borne of a Hallucinogen

The federal RFRA was enacted in 1993 in response to a Supreme Court ruling that Oregon could deny unemployment benefits to members of the Native American Church who were fired because they ingested peyote, a hallucinogen. The state prohibited the use of peyote even if the drug was taken as part of a religious ritual.

The federal law was supported by a bipartisan coalition of lawmakers and stakeholders, Colby of the CLS said.

The Senate bill was co-sponsored by Sens. Ted Kennedy (D-Mass.) and Orrin Hatch (R-Utah). The House bill was sponsored by then-Rep. Chuck Schumer (D-N.Y.). A unanimous House and near-unanimous Senate passed the bill, which President Bill Clinton signed into law.

That same year, Connecticut and Rhode Island became the first states to enact state versions of the federal religious freedom law.

“When RFRA was adopted by the federal government, the impetus behind it was to provide legal protections for religious minorities,” Warbelow said. The same is true of some of the early adopters of state RFRA laws, many of which are considered “liberal” states.

Between 1998 and 2015, 19 more states enacted their own RFRA laws after the Supreme Court held in 1997 that the federal version didn’t apply to the states.

Late adopters of religious freedom laws, however, are “disproportionately more conservative,” Warbelow said. Those laws could be seen by some as a vehicle for people in the religious majority to discriminate against LGBT minorities.

Tension Between Religious Freedom, Anti-Discrimination

The majority of state RFRA laws were enacted before Hobby Lobby was decided in 2014 and before gay marriage was legalized nationally by the Supreme Court in 2015.

However, at least one of the more recent state RFRA laws—Mississippi’s in 2014—was intended as a response to the growing number of jurisdictions legalizing gay marriage.

Under the Mississippi law, the state can't take action against individuals for acting in accordance with certain religious beliefs, even if they violated state discrimination statutes. The protected beliefs are that marriage should be between one man and one woman, that sexual relations should be confined to such marriage or that biological sex is determined at birth and can't be changed.

That law was blocked by a federal judge in June, and an appeal is pending before the U.S. Court of Appeals for the Fifth Circuit.

Some States Back Off Bills

Other religious freedom bills have either died in state legislatures or were vetoed, most notably in Arizona in 2014 and in Georgia in 2016 after vocal criticism from civil rights advocates and businesses. In the current 2017 legislative session, at least one state, Colorado, has already postponed consideration of a religious freedom bill.

Arkansas and Indiana passed the most recent state RFRA laws in 2015. Both include provisions designed to alleviate concerns that the laws authorize LGBT discrimination.

Warbelow said she doesn’t believe carve-out provisions stating that religious freedom laws can’t be used to undermine nondiscrimination protections are sufficient.

“Discrimination happens in a lot of different ways,” she said. “There really is only one way to apply nondiscrimination protections: either you let people discriminate or you don’t.”

Colby observed that the right to religious freedom was seen as “a very positive thing and very necessary” until the push for LGBT rights in recent years began to “cause a split within the free exercise coalition.”

She agreed that nondiscrimination laws serve a compelling government interest. However, that doesn’t necessarily mean that “one set of rights should triumph over the other,” she said.

She added that a RFRA law, alone, “doesn’t choose a side” between religious rights or non-discrimination rights.

The law merely establishes a balancing test between competing interests and determines if the government pursued the least restrictive means for accommodating both, she said.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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