What happens when one person’s First Amendment rights of freedom of religion, free speech or freedom of association run head-on into a second person’s First Amendment rights? Or when one person’s free exercise of religion results in discrimination against that second?
That is what the furor is over Indiana’s Religious Freedom Restoration Act (RFRA). The gay community fears that a business owner, operating a “place of public accommodations,” could as part of his right to freely exercise his religion, discriminate against a gay couple by refusing to cater the gay couple’s wedding. As such, the gay community and others have objected to the Indiana RFRA.
In enacting the federal RFRA, Congress recognized that laws neutral toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.
It provided that “Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the substantial burden to the person -- is in furtherance of a ‘compelling governmental interest;’ and is the ‘least restrictive means’ of furthering that compelling governmental interest.”
State RFRAs track federal law.
Unquestionably, the concern with discrimination is real. But protestors have selected the wrong target. The bottom line is this: When the government legislates “in furtherance of a compelling governmental interest” (e.g., to outlaw “invidious discrimination”), if that legislation substantially burdens the free exercise of a person’s religion, the government must choose the “least restrictive means” of achieving its interest. But least restrictive, at least to me, presupposes an alternative. What if there is no “alternative”? In such a case, it seems the RFRA provides no guidance.
Assume, hypothetically, that the owner of a pizzaria in Nowheresville, Ind., believes gay marriage is sinful, and that in catering a gay wedding he would make himself complicit in sin. Can he be compelled to do so? If not, isn’t he discriminating against the couple? Is there a middle ground?
The U.S. Supreme Court case of Hurley v. Irish American Gay, Lesbian ... of Boston (1995) -- a rare unanimous Supreme Court opinion — probably provides the best answer that can be found.
In Hurley, the South Boston Allied War Veterans Council organized and conducted the annual St. Patrick’s Day Parade. In 1992 a number of gay, lesbian and bisexual descendants of Irish immigrants formed GLIB to march in the parade as a way to express pride in their Irish heritage as openly gay, lesbian and bisexual individuals. The council refused to admit GLIB. It sued and prevailed in all Massachusetts state courts.
“GLIB did not claim the council’s action amounted to ‘state action’ that denied them ‘equal protection of the laws’ in violation of the 14th Amendment.”
In that regard, the Supreme Court noted, “the guarantees of free speech and equal protection guard only against encroachment by the government” and “erect no shield against merely private conduct.”
The court then explained how 1st Amendment rights of the participants are implicated by a parade.
“Parades are thus a form of expression, not just motion, and the inherent expressiveness of marching to make a point explains our cases involving protest marches.
“Our cases have recognized that the First Amendment shields such acts as saluting a flag (and refusing to do so) ... wearing an arm band to protest a war ... displaying a red flag ... and even ‘marching, walking or parading’ in uniforms displaying the swastika.”
The court then acknowledged the state’s competing interest in preventing discrimination.
“The Massachusetts public accommodations law under which respondents brought suit has a venerable history.
“At common law, innkeepers, smiths, and others who ‘made profession of a public employment,’ were prohibited from refusing, without good reason, to serve a customer.
“... the rule was that ‘the innkeeper is not to select his guests; he has no right to say to one, you shall come into my inn, and to another you shall not, as every one coming and conducting himself in a proper manner has a right to be received; and for this purpose innkeepers are a sort of public servants.”
The court then noted the Massachusetts anti-discrimination statute “does not, on its face, target speech or discriminate on the basis of its content, the focal point of its prohibition being rather on the act of discriminating against individuals in the provision of publicly available goods ... and services on the proscribed grounds.”
Nevertheless, the court held that the Council’s collective 1st Amendment rights prevailed over GLIB’s similar 1st Amendment collective rights, and its right not to be discriminated against.
“All speech inherently involves choices of what to say and what to leave unsaid. ... One important manifestation of the principle of free speech is that one who chooses to speak may also decide ‘what not to say.’
“The Council clearly decided to exclude a message it did not like from the communication it chose to make, and that is enough to invoke its right as a private speaker to shape its expression by speaking on one subject while remaining silent on another.
“The message it disfavored (GLIB’s) is not difficult to identify.”
The Court then noted:
“On its face, the object of the (anti-discrimination) law is to ensure by statute for gays and lesbians desiring to make use of public accommodations what the old common law promised to any member of the public wanting a meal at the inn, that accepting the usual terms of service, they will not be turned away merely on the proprietor’s exercise of personal preference.
“(But) When the law is applied to expressive activity in the way it was done here, its apparent object is simply to require speakers to modify the content of their expression to whatever extent beneficiaries of the law choose to alter it with messages of their own.”
As such, the question seems to be whether the celebration of the gay marriage in my hypothetical amounts to “expressive activity.” If the ceremony amounts to “expressive activity” or “advocacy of a cause,” the pizzaria owner probably can, as a matter of freedom of religion, speech and association, decline to associate himself with the ceremony -- just as he could decline to march in a gay rights parade. But if the marriage amounts simply to a private exchange of vows, rather than “expressive activity” in support of a cause, the gay couple may well prevail.
Posted Online: April 24, 2015 11:40 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2015
John Donald O'Shea
