By Joseph LaRue
Suppose members of the white-supremacist Aryan Nation Church decide to hold a rally where they will preach that “God only loves white people.” They tell a local African-American photographer this and say they want to hire her to photograph the rally because they need photos for a promotional brochure.
Assume that the photographer has the religious belief that God loves everybody. Should she have to take the photos for Aryan Nation? Most of us would respond, “Of course not.”
But the legal answer might be different. Most states prohibit discrimination against a customer because of the customer’s religious beliefs. And in those states, if the members of Aryan Nation sued the photographer for discriminating against them pursuant to the state nondiscrimination law, the photographer might lose and face substantial fines as a result.
At first glance, nondiscrimination ordinances seem to make sense. Most of us would not want businesses to be able to deny someone service because of things like the color of their skin, the religion they follow, or whether they are attracted to people of the same or opposite sex.
But while most of us would generally agree with nondiscrimination ordinances as policy statements, these days they are of questionable value as law. Most businesses would never deny someone service based on the types of characteristics nondiscrimination ordinances protect. Business owners know that it is bad for business to be known as a place of bigotry or intolerance.
But what happens in those rare cases where a business owner is asked to participate in an event that violates her deepest religious beliefs or to give voice to a message that violates her conscience?
Note that the service and not the customer is at issue, contrary to how many have attempted to frame the debate. It’s not that the African-American photographer, for example, is refusing to serve someone who happens to be a member of Aryan Nation. She is willing to take his portrait or photograph his dog, for example. The problem arises when the member of Aryan Nation is asking the photographer to promote the message of Aryan Nation with her creative talents.
Sadly, the nondiscrimination ordinances usually still apply. In many states, if Aryan Nation filed a discrimination lawsuit, they might win, leaving the photographer to pay crippling fines. In other states, however, a religious liberty defense is available to the photographer if providing requested services would violate her sincerely held religious beliefs.
Generally known as Religious Freedom Restoration Acts, or RFRAs, these state laws are modeled after the federal RFRA that Congress overwhelmingly passed in 1993. Signed by President Bill Clinton, the federal RFRA received a unanimous vote in the House and a 97 to 3 vote in the Senate. It legislatively overturned the US Supreme Court’s Employment Division of Oregon v. Smith decision. That case weakened First Amendment free exercise protection when it ruled that laws that are neutral (that is, don’t target religion) and generally applicable (that is, apply to everyone) are constitutional, even if they cause a person to violate her religious beliefs.
Prior to Smith, the court applied what is known as strict scrutiny review to laws that burden religious belief or practice. See, e.g., Sherbert v. Verner; Wisconsin v. Yoder; Thomas v. Review Bd. of Ind. Emp’t Sec. Div.. Under that test, the law had to further a compelling interest, which was understood to be only an interest of the highest order, and had to be the least restrictive means of accomplishing the interest. So even if the government had a compelling interest for its law, the law could not be applied constitutionally to someone if it could accomplish its purpose without forcing the person to violate her faith.
Smith said that the strict scrutiny test no longer applied to neutral, generally applicable laws that burdened religious faith and practice. So while government could not enact a law that banned, let’s say, the religious rite of circumcision while allowing medical doctors to perform circumcisions, it might be able to enact a law that banned all circumcisions, as as San Francisco recently contemplated doing.
The federal RFRA overruled the Smith decision by restoring the strict scrutiny test for all laws that burdened religious faith and practice, regardless of whether they were neutral and generally applicable. The Supreme Court subsequently ruled in City of Boerne v. Flores that, while Congress could require that federal laws burdening religion survive strict scrutiny, it could not impose that requirement on the states. So states began passing their own RFRAs, which required that any law burdening their state constitutional free exercise clause must further a compelling interest and be the least restrictive means of accomplishing that interest.
To date, eighteen states (including Arizona, where the recently vetoed SB 1062 was proposed) have passed a state RFRA, and the high courts of eight additional states have ruled that state laws burdening the free exercise of religion must survive strict scrutiny review. The District of Columbia also provides RFRA protection.
Over the past twenty years, hundreds of lawsuits have involved federal and state RFRAs, but not a single one has involved a business owner who wanted to deny basic services like food, clothing, necessary medical care, hotel rooms or taxi cab rides to people because of their skin color, sex or sexual preferences. In fact, none has concerned skin color or sex, and only one (Elane Photography v. Willock, discussed below), has even touched on “sexual orientation.” Rather, RFRA cases typically involve things like zoning restrictions that make it impossible for religious groups to use property, as in Irshad Learning Center v. City of Dupage, or prison regulations that make it difficult for prisoners to live consistently with their faith, as in Muhammad v. Crosby.
With RFRA, a litigant is at least allowed to assert a free-exercise-based claim or defense so that a court or administrative law body is required to apply the compelling interest test. RFRA does not guarantee that the litigant wins and the law cannot apply to her. Rather, RFRA means that when a law burdens free exercise of religion, it has to survive strict scrutiny in order to apply to the one whose exercise of religion is burdened. RFRA makes certain that government cannot willy-nilly enact laws that violate people’s faith and so discriminate against people of faith.
Since the enactment of the federal RFRA, it has always been understood that a person could assert a RFRA claim or defense any time a law or policy enacted by the government substantially burdened his or her free exercise of religion. That all changed last year with Elane, in which the New Mexico Supreme Court ruled that RFRA was inapplicable if the government was not the one enforcing its law.
Elane concerned Elaine Huguenin, a young photographer who wanted to run her business consistent with her religious faith. As a result, Huguenin would not accept certain jobs. For instance, she declined to take nude photos, even when some would argue that the photography would be “tasteful.” And she had a strict policy against photographing any depiction of violent behavior. In sum, Huguenin would not use her artistic talent to further messages at odds with her religious beliefs.
The trouble for Huguenin started when two women asked her to photograph their “commitment ceremony,” as they called it. Huguenin would gladly provide other photographic services for customers who identify as homosexual, including portraits, photographs capturing political rallies, etc. It was not the fact that the two women were a same-sex couple that prevented her from photographing their ceremony. Rather, it was the event itself: her religious beliefs would not allow her to photograph what amounted to a same-sex wedding.
Accepting the job would require her to attend the ceremony, which her faith teaches would amount to participating in something that is morally wrong. But more obviously, she would also have to pose the couple to get the right shots. This would require her to instruct the couple on how to kiss, where to caress, etc. A wedding photographer is entrusted with capturing the memories and creating the pictorial message that tells the story of the couple’s love and their wedding as something that is beautiful.
Because of her beliefs, Huguenin could not in good conscience tell that story. Nor could she do the other things required of a wedding photographer. To do so would force her to both act contrary to her faith and also use her artistic talent to create a message with which she disagreed. So, she very politely thanked the same-sex couple for their interest but declined, telling the couple that she did not photograph same-sex ceremonies.
In a sane world, Huguenin’s polite answer to the same-sex couple would have been the end of the story, but in this case, it wasn’t. The case against her went all the way to the New Mexico Supreme Court, which said, in contrast to all twenty years of RFRA history, that it only applies when the government is enforcing its law directly. If the government delegates that responsibility to a private party, such that a private party can sue to enforce state law, then RFRA does not apply.
This ruling was unprecedented. It is also probably an outlier. However, it means that, in New Mexico at least, an African-American photographer could be forced to shoot photos for Aryan Nation. Because New Mexico allows private parties to enforce its nondiscrimination law, the state RFRA would no more save this photographer than it saved Elane Photography.
Because of this decision and other similar cases around the nation, Arizona’s legislature passed SB 1062 to clarify that Arizona’s RFRA, which has been on the books since 1999, could be asserted whenever a law burdened a person’s free exercise of religion—regardless of whether the government was the one enforcing the law. It did not, as has been commonly and erroneously reported, create a license to discriminate. It would not have allowed businesses to begin kicking people out of their establishments because of skin color or sexual preference.
No business would have done that anyway for reasons mentioned above, and, if the state RFRA was fomenting such discrimination, then it would have been apparent already since the law has been in place for fifteen years. The fact that the opponents of SB 1062 could not point to actual examples of anyone being denied services, but rather had to raise the possibility as a shadowy boogey-man, is telling.
SB 1062 was not about allowing people to discriminate. Rather, just as numerous respected legal scholars have explained, the bill would have clarified that, under Arizona law, the government cannot discriminate against people of faith by enacting laws that burden faith but then don’t allow private parties to enforce them. In New Mexico, the government can do that and so avoid strict scrutiny review.
Religious freedom is still protected in Arizona even though Brewer vetoed SB 1062 because Arizona still has its RFRA. SB 1062 was not essential to the fight against discrimination against people of faith; it merely would have clarified what has always been understood to lessen the chances of a court getting it wrong. Still, it is troubling that some people opposed SB 1062 for imaginary reasons and seemed so ready to endorse discrimination against people because of their religious beliefs. Thankfully, this view is at odds with that of most Americans.
Spencer Lewis Jr., district director of the Equal Employment Opportunity Commission’s (EEOC) Philadelphia District Office, recently said that “[n]o employee should be forced to violate his religious beliefs in order to earn a living.” Lewis is right. And no business owner should be forced to, either.
Joseph La Rue, legal counsel for the Alliance Defending Freedom, testified in favor of SB 1062 before two Arizona legislative committees.