Published by the Freedom From Religion Foundation, Inc. FFRF.org

Second place — Law student essay contest: Jessica Gaudette-Reed

Vol. 36 No. 10 December 2019
Jessica Gaudette-Reed                                                                                                                                                                                                                                                                                                         

FFRF awarded Jessica $3,000.

By Jessica Gaudette-Reed

Texas House Bill 135 (also known as the “the Free to Believe Act”) creates a statutory right to discriminate. The bill is broad enough to have contemplated all of the recent controversies surrounding the tensions between LGBTQ+ rights and religious liberty, and it denies the rights of a person to bring a claim against an entity when “sincerely held religious beliefs” are cited as the reason for refusal of accommodation or service.

The pending legislation preempts protections passed in municipalities, promotes a singular worldview in which “marriage is or should be recognized as the union of one man and one woman; and the terms ‘male,’ ‘man,’ ‘female,’ and ‘woman’ refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at the time of birth,” and unquestioningly concedes to religiously motivated discrimination in employment, health care, and public accommodations.

On its face, the Free to Believe Act seems to only disadvantage government by preventing its intrusion into religious conscience. If it created a statutory plan to remove the government from the endorsement or burdening of religious practice, it would strike a balance of recognizing the importance of religion to many while simultaneously protecting the rights of those who may be targets of religious refusal. However, the bill removes a right of action from private persons, thus eliminating a forum for resolving grievances, and raises the level of judicial scrutiny a court must use when adjudicating free exercise violations. This has the effect of holding religious conscience at a higher level of scrutiny than minority rights and requires judicial deference in cases brought by other constitutionally protected classes against those who make free exercise claims.

Those most likely to be refused services are members of the LGBTQ+ community, but they are by no means the only targets of this legislation. Observers of minority religions, women, homeless persons, intersex persons and children are also in the crosshairs. The bill expands protection for refusals based on religious objections while directly contracting protections for others by creating a special class of persons exempt from following laws of general application. Far from a precommitment to allow free exercise without fear of governmental interference, it is an imposition of a popular belief onto disadvantaged groups. Access to scarce public resources — such as sheltering, adoption, medical care — is conditioned on an individual’s acquiescence to the religious tyranny of the majority.

Far from an anomaly, the Free to Believe Act is one of dozens of religious refusal bills introduced this year. Like its counterparts, the Act precommits the state of Texas to heightened consideration of free exercise claims, which by itself is not necessarily an egregious constitutional violation. However, in the forms that these religious exemption bills have taken, states are not just expanding the rights enjoyed by their citizens so as to lift them from the floor of the Constitution, they are actively passing legislation that enhances protections for some at the cost of abrogating federally recognized protections of others.

Under even the most generous of analyses, religious exemption laws in their current forms violate the right to privacy, personal autonomy and freedom of association as recognized in Roe, Obergefell, Romer and Lawrence. This is not their only flaw. Religious exemption laws, as imagined by these bills, are also ahistorical. In the history of religious exemption, not even Masterpiece Cakeshop — a case heralded by the evangelical right as a recognition of the supremacy of their worldview despite its narrow, procedural ruling — recognizes the right of a place of public accommodation to discriminate based on their religious beliefs.

In Supreme Court jurisprudence, religious exemptions have generally been held to apply only to exemptions from a narrow class of civic duties: the draft, munitions manufacturing, unemployment benefits, mandatory school attendance past eighth grade, and providing contraceptive coverage under a generally applicable insurance mandate. All of these exemptions stretched only to the margins of where the state’s interests began and followed a reliable, deferential standard. 

The court has not yet decided a case regarding religious exemption from generally applicable law for private persons seeking to refuse service based on their religious beliefs. In fact, the court’s refusal to hear a Washington case that parallels Masterpiece Cakeshop may point toward a less generous interpretation of free exercise claims than proponents of religious exemption laws would hope. Equality becomes a precarious idea — especially for the religious — when it is conditioned on exemption from generally applicable laws.

The most central legal issue with religious exemption laws was noted by Justice Scalia in Employment Division v. Smith, who stated in the majority opinion that allowing exceptions to every state law or regulation affecting religion “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.” Much in the same way that the court refused to grant certiorari for Arlene’s Flowers v. Washington in 2017, the court respected the federalism issues raised by requests for religious exemptions based on neutral, generally applicable state law. A law favoring one worldview over all others that denies the right to relief for those who are injured by that same law is hardly neutral, and even the conservative court may find that these laws violate the Establishment Clause. The unqualified deference to individual conscience gives believers permission to violate laws that are central to a just and equitable society.   

Jessica, 31, is a third-year law student at the University of Florida Levin College of Law. She attended Portland State University as an undergrad and got a B.A. in history and an African Studies certificate. Prior to attending college, she served in the U.S. Army. In addition to serving as the editor of the Florida Journal of International Law, she is chair of the LGBT Bar Association’s Florida and Puerto Rico Law Student Congress.