Monthly Archives: January 2015

Is Refusal to Write Anti-Gay Cake Message a Violation of Religious Freedom?

Originally posted at Religion Dispatches on January 23rd, 2015.

By Kara Loewentheil

Denver, Colorado can feel like an alternate universe for a lot of reasons, but now we can add a new one to the list. Because in the first such case of which I’m aware, a bakery in Denver has been sued for refusing to bake a homophobic cake. According to the reports, the plaintiff in the suit requested that the baker bake him a cake that said “God hates gays” along with a picture of two men holding hands with an X over them. When the baker—who identifies as Christian herself—refused, the plaintiff filed a complaint with the Colorado Civil Rights Division, accusing her of religious discrimination.

It’s a snappy inversion of the now-classic example of bakers who refuse to provide wedding cakes for gay marriage or commitment ceremonies (or florists who refuse to provide flowers, photographers who refuse to photograph the ceremony, etc.). And that’s probably not an accident; if I were a betting woman, I’d bet heavily that a pro-religious-exemption think tank or law firm, like the Becket Fund, had come up with this plan and recruited a plaintiff to set it in motion.

The involvement of the local politicians mentioned in the story is likely strategic as well: Talking Points Memo quotes an “anti-gay” state lawmaker who says he supports the baker’s right to not print messages she finds offensive on her cakes. Now perhaps he’s just a stringent supporter of free speech, but it’s entirely possible that he supports this principle because he knows it’s more likely to come up the other way around, with religious conservatives refusing to provide goods or services associated with practices to which they object (like gay marriage, abortion, contraception, etc.).

So as a piece of political theater and strategy, it’s a clever move. As a legal matter, it’s also an interesting case. The fact that the plaintiff requested actual words on the cake makes it more complicated, because it implicates the baker’s free speech rights. It’s one thing to request that a baker furnish a cake that might be used to celebrate something to which the baker objects—that’s a kind of second-degree complicity argument. But requiring a baker to actually perform a speech act—writing on the cake and selling it—might be more problematic from a free speech point of view.

But what if there was no speech involved, or even no image at all? Just a customer who comes in and says “I want to order a cake to be used at my Church prayer group, where we plan to pray that God will smite anyone in a same-sex marriage or who has had an abortion. We will bless the cake and serve it in celebration of this holy purpose.” That’s a reasonable analogy to the gay couple that requests a cake for their wedding ceremony, I think, for the purposes of separating out identity from action, although it’s an imperfect one given the social and spiritual and legal significant of a marriage. But still, it’s a worthwhile foil for thinking through the argument. So does the fact that I find the prayer service purpose hateful or objectionable, or in conflict with my own principles, change its legal implications?

One argument might be that the baker’s rejection of the cake is not about religion, it’s about a secular value or politics: the baker won’t bake any homophobic cakes, no matter whether a religious person or a secular person asks. This is an interesting argument, one that Professor Caroline Corbin made in a twitter conversation we had about the case.

But if the customer tells the baker they want the (undecorated) cake for religious reasons or a religious event, like the hypothetical Church prayer group in my example above, I’m not sure that the fact that the baker has a political objection to the customer’s religious beliefs means that refusing to bake the cake isn’t arguably religious discrimination.

There’s an ongoing question in other areas of discrimination law, like Title VII’s employment discrimination protections, about whether religious discrimination means discriminating against someone because they are a member of a given religion or because they take or don’t take actions that are aligned with a given religion’s beliefs, and this situation seems to me to implicate that question.

Another interesting thought experiment is to imagine that you have an anti-marriage equality baker who is willing to bake cakes for gay customers in general, even knowing they are gay, but is not willing to bake one for a gay marriage. If that is discrimination on the basis of sexual orientation, then how do we think about a baker who would be willing to bake a cake for religious Christians in general, but just not if it is to be used at an anti-abortion or anti-marriage equality prayer service?

I’m not sure what the answer is here. But one of the things I find really interesting about this example is the way it highlights the blurry boundaries between politics and religious values. In this case the baker herself actually identifies as Christian, so in some sense it’s a conflict between two types of Christianity (the baker might be in better shape if she filed suit for an injunction from a court protecting her from the Colorado administrative process on the grounds that NOT baking a homophobic cake is part of her religious exercise).

But lets say the baker was irreligious. To her, homophobia might be a political or moral issue—but to the customer, it’s (allegedly) a religious one. People generally don’t hold religious and political views that conflict, and when people have political views about topics that religion also highlights, or vice versa, it gets pretty messy to try to distinguish between them.

To me, this is an example of why we need more thinking around the question of dignitary harms and the value of different forms of religious expression. Is a same-sex wedding the same as an anti-same-sex prayer meeting? Should it have the same legal status? The same moral weight? Does rejection of that purpose produce the same kinds of symbolic or dignitary harms? These are hard questions. We should probably have some cake.

Kara Loewentheil is the Director of the Public Rights / Private Conscience Project and a Research Fellow at Columbia Law School.

Why Muslim Beard Decision Was a Boost for “Religious Liberty” Advocates

Originally posted at Religion Dispatches on January 22nd, 2015.

By Kara Loewentheil

The Supreme Court issued its opinion in Holt on Tuesday, holding that prison regulations that prevented a Muslim inmate from growing a short beard for religious reasons violated the Religious Land Use and Institutionalized Persons Act (RLUIPA), a form of RFRA that applies to state prison inmates as long as the state facility accepts federal funds (which almost all state facilities do). There are a couple of interesting things about the opinion, which was unanimous (with two separate concurrences by Justices Ginsburg and Sotomayor).

The first, and most important, is that the opinion in Holt is further proof that the majority of the work in a RFRA or RLUIPA case is now located in the compelling interest/narrow tailoring part of the test. The initial elements (that the affected activity be a form of religious exercise, that the plaintiff be sincere in his religious motivation, and that the burden be substantial) continue to be lazy gatekeepers.

Why does that matter? The bottom line is that it leaves the answer to the question of when someone’s religious rights are being burdened mostly up to them. The government might still win a case if it’s doing the burdening for an important reason or it can’t be avoided, but Holt is yet another case in which, like it did in Hobby Lobby, the Supreme Court pays little attention to determining whether or not a regulation is actually a burden on someone’s free exercise rights. And because of the way the doctrine works, it’s harder for the government to satisfy the rest of the test once the burden has been established.

Part of that low bar is due to the fact that the opinion continues the slippage between the concepts of sincere religious belief and substantial burden that were evident in Hobby Lobby as well. The Court notes that the state has not disputed the sincerity of the prisoner’s belief that his religion requires him to grow a beard. It then turns to the substantial burden analysis, but simply states, quoting Hobby Lobby, that the policy requiring the petitioner to be clean-shaven means he must “engage in conduct that seriously violates [his] religious beliefs.” There is no discussion of why not being able to grow a beard when one believes one’s religion requires it is necessarily a substantialburden. Does it have to do with how important the plaintiff believes the requirement to be? But if that’s the case, then any burden a plaintiff claims (or at least cares enough about to litigate) would be substantial.

Please note, I’m not arguing about whether or not having a beard is a central element of Islam. And I realize that the free exercise in question need not be “central” to any religion for it to qualify for RFRA or RLUIPA protection, under current jurisprudence. What I’m trying to highlight is the erasure of a distinction between a plaintiff’s sincere belief (which is a question of fact, whether or not a court chooses to investigate it) and the question of whether a burden is substantial, which should be a question of law that is not determined by the intensity of the plaintiff’s subjective spiritual experience. Or is the severity of the punishment what determines the substantiality of the burden? The Court says the petitioner would be subject to “serious disciplinary action” but does not specify what that would entail.

Again, I’m not trying to argue that a beard is not an important part of the practice of Islam in general, or this petitioner’s particular understanding of the religion. I’m not even saying that the Court got the case wrong here; in fact, I think it’s probably the right outcome. But the fuzzy relationship between sincerity, exercise, burden and substantiality means that the pressure will continue to intensify on the compelling interest/narrow tailoring analysis to do the majority of the recognizable legal work in the analysis of RFRA and RLUIPA claims.

The second interesting item is Justice Ginsburg’s concurrence, which she uses to state that her joining the majority opinion depends on the fact that there are no third-party harms at issue in this case. In so doing, I think Justice Ginsburg is trying to remind everyone that third party harms—a Hobby Lobby employee losing reproductive health coverage as a result of her employer’s beliefs, for example—should be a relevant consideration for RFRA and RLUIPA analyses. This is particularly important because RLUIPA case law, thus far, is the case law we have on the RFRA/RLUIPA standard that actually pays attention to third party harms.

Unsurprisingly, the courts have been fairly willing to recognize third party harms when it comes to deference to a government’s decisions in the prison context (unlike when it comes to reproductive rights, as in Hobby Lobby). Justice Ginsburg’s concurrence, therefore, reads to me as an attempt to draw attention to that aspect of RLUIPA case law and to maintain its relevance, despite the fact that it didn’t do as much work as one might have hoped to protect third parties in Hobby Lobby itself.

Kara Loewentheil is the Director of the Public Rights / Private Conscience Project and a Research Fellow at Columbia Law School.

3 Religious Exemption Cases To Look For In 2015

Originally posted at Religion Dispatches on December 31st, 2014.

By Kara Loewentheil.

We already know that 2014 was a big year for religious exemption cases, from the gravely serious to the immensely trivial. But what will 2015 have in store? If I were a prophet I could, of course, predict the future. But let’s just call these my top three educated guesses for the kinds of religious exemption cases we’re going to see in 2015.

1. Contraception: Total Exemption

First and foremost, we’re going to see continuing litigation over the Affordable Care Act’s contraceptive coverage requirement and the accommodation process already in place. There are some plaintiffs, both for-profit and non-profit, who will object to any accommodation at all and claim a right to a total exemption from the law; i.e., they don’t want anyone to give their employees birth control coverage in any manner that is related to their employment.

That is, if the government just wanted to give every woman in America a free-standing statutory right to contraceptive insurance coverage that would be paid for and administered by the government and would not involve your employer in any way, even as a vehicle, that might be ok with them. Maybe.

Ultimately the Supreme Court is probably going to have to consider the question of whether RFRA provides a complete exemption for those who object to any accommodation process.

2. Marriage Equality: Public Officials

2015 is also likely to be the year of suits claiming religious exemptions from participating in gay marriage solemnizations or celebrations. We’re already familiar with the example of service providers—like bakers or florists—who refuse to work with gay couples on their marriage ceremonies or parties.

But heading into 2015, as more and more states have marriage equality implemented to conform with federal court rulings, we’re likely to see a renewed effort to allow public officials to claim a religious exemption from performing gay marriages. These could take the form of lawsuits under state RFRAs, or could be legislated directly into effect, as was the case with a recent proposed bill in North Carolina.

3. Corporate Rights: Size Matters

Hobby Lobby involved a claim by a family-owned and family-operated for-profit corporation with a limited number of shareholders, all of whom shared a set of religious beliefs and values. And the majority opinion in the case was careful to assure readers that there was no reason to think that larger for-profit corporations would bring similar suits.

The only problem is, there’s no reason to think that they won’t. Imagine a publicly-owned religious products company for instance—or even just a privately-held one that has a larger and more diverse group of shareholders than were at issue in Hobby Lobby. Plenty of large corporations, even publicly-held corporations, operate in markets where discriminatory policies or actions might actually help their bottom line.

So in 2015 I suspect we’re going to see litigation fleshing out just what kinds of for-profit entities are eligible for exemptions under the federal RFRA or similar state laws, and whether Hobby Lobby provides any principled way to draw the line on size.

Kara Loewentheil is the Director of the Public Rights / Private Conscience Project and a Research Fellow at Columbia Law School.

5 Silliest Religious Exemption Cases in 2014

Originally posted at Religion Dispatches on December 25th, 2014.

By Kara Loewentheil.

2014 was the year that the Religious Freedom Restoration Act (RFRA) made a comeback, and now religious exemptions are the talk of the (policy wonk) town. As Hobby Lobby emboldened those seeking religious exemptions, we saw more and more outlandish claims being advanced disguised as religious rights. Here are the top five bizarre religious exemption claims of the past year—although I’m sure 2015 will find a way top them.

  1. The nurse who told a family planning clinic she wouldn’t prescribe birth control and then sued the clinic for not hiring her. Yes, you read that right. Enough said.
  1. The woman arrested for crystal meth who claimed she needed it for her Wiccan religious practices. That’s how far we’ve come from the Native Americans who were penalized for using peyote in the landmark Smith case that brought us RFRA to begin with.
  1. The Satanic Temple’s print-and-sign web form for claiming a religious exemption to get out of having to listen to state-required biased counseling laws before obtaining an abortion. If only it were that easy.
  1. The member of a Mormon sect who claimed it would be against his religious beliefs to provide any factual information about the structure or hierarchy of his church to government officials investigating a potential violation of child labor laws by a fundamentalist sect that ran a pecan ranch. Somehow I have the feeling judges are going to be a lot less friendly to religious exemption claims should they prevent prosecutors from doing their jobs.
  1. The Kansans who continued their 2013 suit against the State Board of Education allegingthat state standards requiring that science classes teach…science…violated their religious rights by imposing a “materialistic” or “atheist” world view. Apparently they haven’t heard that even the Pope thinks you can believe in God and evolution at the same time.

Coming up next week—the top five religious exemption cases we can expect to see in 2015.

Kara Loewentheil is the Director of the Public Rights / Private Conscience Project and a Research Fellow at Columbia Law School.