Since Easter may have turned some people’s minds to chocolate religion, perhaps it’s worth taking just one more look at the vexed question of the right to discriminate on religious grounds, topical again in the United States with the religious freedom legislation passed last week in Indiana.
The initial version of the law met with a storm of controversy, leading Republican governor Mike Pence to support the addition of amendments to “clarify” it. The official conservative movement, however, including virtually all the likely candidates for the Republican presidential nomination, continues to endorse the law and the principle of protecting religiously-motivated bigotry.
It’s easy to imagine a law protecting freedom of association in general that incidentally provided protection to fundamentalists who didn’t want to serve gay people. Listening to some self-styled libertarians [link added], you might almost think that’s what the Indiana legislature had done. But it’s not: as with a similar measure last year in Arizona, licensing discrimination for religious reasons is central to the law, not incidental.
And conservatives in reality don’t defend the law by invoking freedom of association. They point to a different freedom, freedom of religion, and a 1993 federal law, the Religious Freedom Restoration Act, that already contains (they say) much the same provisions as the Indiana law. (In 1997 the Supreme Court held that the federal law did not apply to the states, creating a need for separate state legislation.)
The claim that the Indiana law doesn’t go much beyond federal law looks as if it might be a bit disingenuous. But rather than wading through the detail of the legal provisions, I want to set out why I think the 1993 law is such a bad precedent to rely on in the first place.
The Religious Freedom Restoration Act wasn’t about the denial of service to gays, or anyone else. Congress acted in response to the 1990 Supreme Court decision in Employment Division v. Smith, concerning the claim by two members of a Native American church in Oregon that their religion warranted their use of peyote, a banned hallucinogenic drug (they weren’t actually prosecuted for drug use, but they were denied unemployment benefits after losing their jobs for it).
Faced with this sort of a claim, there seem to be three possible responses.
1. Because the law against drug use treats everyone equally and isn’t directed specifically against religious observance, it’s not a violation of the right to free exercise of religion, so believers are out of luck.
2. Because the government has no compelling interest in prohibiting ceremonial drug use, to do so is an unreasonable infringement of religious freedom. So genuine religious belief is a good defence; secular potheads, however, are out of luck.
3. Because prohibiting drug use in this case would breach the free exercise of religion clause, the drug laws in general are invalid, because believers and non-believers have to be treated the same way.
The first response, which is basically what the Supreme Court said, certainly makes sense. But in a country as religious as the United States, treating believers with such disdain was not a politically attractive route. That, to my mind, pushes one towards the third response. If a law amounts to an unreasonable restriction on people’s ability to practice their religion, then it’s a bad law and should be overturned.
What can’t be justified, however, is the move to the second position: that the law should stay in place, and be enforced against everyone else, just not against religious believers. That means privileging religious reasons above all other reasons, which surely amounts to an establishment of religion – as prohibited by the First Amendment, the very thing that started all the trouble in the first place. But that, of course, is exactly what Congress did, seconded by many states, now including Indiana.
As other commentators have pointed out, the political context has changed a lot in the two decades since the near-unanimous passage of the Religious Freedom Restoration Act. No-one worries much now about ceremonial drug use by Native Americans, if indeed they ever did. Instead the outstanding landmark in the culture wars is the collapse of resistance to same-sex marriage, now legal across more than 70% of the country.
In place of a bipartisan if muddled effort to safeguard religious freedom, there’s now a last-ditch effort by conservatives to stake out a protected sphere for anti-gay bigotry. But as Indiana shows, even that is meeting stiff resistance.
Perhaps it will take another 20 years before freedom of association is allowed to take centre stage.
The World is Not Enough 
When it comes to lawyers being able to drive almost any social issue, not just those with religious connotations, into an intellectual morass, it once again seems no nation is as susceptible to this as the U.S.A.
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No brainer – such laws fail the 14th amendment’s protection of equality of the law. What religious protagonists claim is that their beliefs are paramount, that they are “more equal” in their claim to “free exercise” than those who disagree. This a false assumption. No “right” is absolute. A right may be exercised so long as it does no harm to the exercisee, other people, private and public property (among other things). Human sacrifice as an exercise of religion is against the law.
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> “If a law amounts to an unreasonable restriction on people’s ability to practice their religion, then it’s a bad law and should be overturned. What can’t be justified, however, is the move to the second position: that the law should stay in place, and be enforced against everyone else, just not against religious believers”
Sorry, Charles, completely disagree with you on this. What’s crystallised why I disagree is Clive Palmer’s selfish, plutocratic demand to rip open Western Australia’s seal against COVID-19 contamination just so he can fly in and out to make money. There is a very real danger that the same High Court that brought us a lunatic interpretation of Constitution Section 44 may bring us an equally lunatic interpretation of Section 92; the Justices could well rule that restrictions on inter-State travel and commerce must be “proportionate”, eg blocking only incoming travellers from “known” coronavirus hotspots elsewhere in Australia: https://www.theage.com.au/national/western-australia/less-than-one-per-cent-wa-s-chief-health-officer-under-pressure-to-explain-border-closure-during-palmer-trial-20200728-p55g3x.html
In the real world, this is unworkable. Travellers lie about their point of departure: police have to make on-the-post decisions faced with long queues of irate motorists. A “proportionate” system may catch 99.9% of cases, but as bitter experience shows, a single concupiscent security guard or a pair of larcenous school cleaners can plunge an entire State, with millions of people, back into a second wave within days.
Do you think the Justices would agree that a complete ban on taking, say, knives into the High Court precincts on Lake Burley Griffin is “disproportionate” because it unfairly targets peaceable types who just want to peel an apple for their afternoon tea? That the Court’s security personnel should confine its knives can to only those tourists whose driver’s licences or Stat.Decs reveal they live in regions of known high knife-crime activity? Of course not. Why, that would be utterly ridiculous. Sometimes you just have to draw lines.
There are plenty of minorities who should be protected against populist passions by entrenching their constitutional rights. But the fear that elected governments will do anything that slows GDP-generating economic activity without very, very, very strong grounds can safely be discounted
Given, however, that Palmer can afford very good barristers and that the High Court has decided legalism is not a dirty word, there is every chance that WA’s quarantine barriers will be struck down and Clive and thousands of others will be permitted to crap in the swimming pool provided they promise not to crap in the “Non-Crapping” end of the pool.
If it were just Clive on his own who got to sanctions-bust – if, say, McGowan were to grant him the personal ticket of leave he’s demanding on condition he drop his legal challenge – there would be less danger. Sure, it’d be unequal and autocratic and discriminatory and all that, but Clive would only be Hermann Cain-ing himself and his own family. He’s probably less likely than most COVID-19-carriers to infect strangers at the supermarket.
Therefore, I would prefer a situation where a constitutional court has the option of allowing carve-outs or exemptions for those who have specific claims, including religious or conscientious claims. If the Amish really, truly believe that they are sinfully adorning themselves by placing reflective orange safety plates on their buggies – that God wants them to risk road accidents because their plain black carriages are otherwise hard to see at night – I would rather exempt those few hundred people than have the entire law struck down, making night reflectors optional for the entire population, and therefore leading to more road crashes.
The case for this is strongest when the person does not profit from their religious/ conscientious claim. “We don’t allow employees at our chain of businesses to unionise, because unions make baby Jesus cry” [*] coincides a bit too closely with the self-interest that a purely irreligious employer would pursue. But “we’re willing to risk road crashes because we think ‘the English’ put orange reflectors on their vehicles out of vanity”… well, you have to respect the Amish for their hard-core pig-headedness there.
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Thanks Elizabeth. You make a good case, but I have to say I’m still not convinced. I don’t mind exemptions for conscientious objection, provided it’s genuinely neutral as between the religious and the non-religious. I do respect the Amish for their “hard-core pig-headedness,” as you aptly put it, but I think on balance I’d still say that should only go to mitigation, not to full exemption.
As to s. 92, my guess is that the High Court will throw out Palmer’s case. I also think it’s quite likely that they won’t get around to deciding it for months, by which time the whole issue should be moot. On the other hand, I think they made the right decision on s. 44: it’s a bad section & it should be changed, but it really does say what the court says it does.
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Sorry, Charles, i should have been clearer. I agree completely that if there are exemptions they should apply to secular conscientious objections as well. (Or to conscientious objections that do not match exactly match religious beliefs – eg Catholic pacifists in the Dorothy Day tradition who reject even the “just wars” permitted by the Vatican’s catechism, say, or the large minority of Seventh-Day Adventists who are complete vegetarians). On the other hand, it should not apply to religious practices that are not compulsory duties.
(This does have some effect of discriminating against Christians rather than Jews or Muslims – wearing kippahs or hijab is mandatory for some sects of the latter, but wearing crosses or crucifixes is not mandatory for any sect of Catholics or Protestants I know of. Not ideal, but a lesser evil because it keeps the overall departures from general legal equality to a minimum. Only a few hundred Muslim women, and not a few thousand Christian women, get to keep their heads covered when they’re in a bank queue. Less social cost overall in terms of security risks).
The case for an exemption is the strongest when (a) you are asking to abstain from an activity – neither impeding it nor inflicting anything on others (the human sacrifice counter-example is a bit of a red herring), (b) when you give plenty of prior notice, so the govt or your employer can try to arrange a substitute (again, this unavoidably favours well-known belief systems – everyone knows not to assign the staff member who’s “obviously” Hindu or vocally white vegetarian to work the meat counter – less well-known conscientious objections may need to explain themselves in advance, but them’s the breaks), (c) when you’re not gaining any profit or advantage by opting out (eg, non-voting, declining money from business deals you think immoral), and (d) when your refusal doesn’t stop others stepping in,, ie you don’t have a monopoly and there’s no concerted cartel or boycott (one reason why the “But that would be like Jim Crow!” objection is usually misguided; in the US South, segregation in businesses was enforced by intense social pressure as well as by law; voluntary association was off the table, and the only options left were either federal coercion banning discrimination or state and local coercion making it de facto compulsory).
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One bright side of this https://www.dailymail.co.uk/news/article-8769135/Amish-brothers-22-18-admitted-sex-13-year-old-sister-AVOID-jail-time.html sorry report is that it seems some Amish do accept orange safety reflectors on theoir buggies.
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