Adam Shapiro

Several US states, most notably Arizona have considered legislation to ensure the “religious freedom” of individuals and businesses who wish to exclude customers on the basis of their sexual orientation.  These bills don’t really signal a new change in the cultural or legal understanding of sexuality and sexual orientation in the United States.  Rather, they represent an adaptation of legal strategies to enable the continuation of old understandings as they become politically marginalized.  What’s new is the attempt to legally redefine ‘religious freedom’ as a broader means to refuse to act in ways otherwise required by state or by society and to extend the rights entailed by religious freedom to other entities besides privately religious persons and explicitly religious organizations (like churches.)  In recent years, similar ideas of religious freedom have been used to defend employers who refuse to provide health insurance that includes access to contraception or abortion, to defend teachers and publicly funded charter schools that object to teaching evolution or sex education, to defend pharmacists that refuse to stock drugs or fill prescriptions for contraception.  Even though the most immediate implications of the Arizona bill (if it is signed into law) would be to enable sexual orientation-based discrimination on religious grounds, the bill might also provide greater legal cover to advocates of religious freedom applications in these other instances (most of which also concern the regulation of sexuality in some way.)

Are Arizona and other states using ‘religious freedom’ to create the ‘Gay Jim Crow’?

The most recent wave of bills comes in the wake of a New Mexico lawsuit concerning a photography studio who refused to provide services to a same-sex couple, with the photographer maintaining that: “to require a photographer to create expressive images and picture-books conveying messages that conflict with her religious beliefs violates the First Amendment’s ban on compelled speech.” The specifics of that New Mexico case raise some questions about the broader Arizona bill, which would apply to any businesses, not just those which, like photographers, engage in “creative speech.”  Is all commerce a form of speech act, and thus legally protected? That argument could be made in the wake of the 2010 Citizens United decision, but the new laws move the ground from freedom of speech to freedom of religion, which would render some of the complex legal issues involved moot.

The Arizona bill raises some other complex constitutional issues, particularly in the requirement that “a person’s religious belief is sincerely held.” (Section 2, part E, #2) The accommodation of sincere religious belief has a long history in the American legal tradition, and has been most carefully explored by the courts with respect to conscientious objection to military service.  In two supreme court decisions from the Vietnam era, United States v. Seeger and Welsh v. United States, the courts ruled that sincere belief need not be religious, per se.  Nonetheless, the courts established standards for determining the sincerity of belief, (finding for example, that opposition to a particular war was not grounds for objector status) In Seeger, the court opines:

we hasten to emphasize that while the “truth” of a belief is not open to question, there remains the significant question whether it is “truly held.” This is the threshold question of sincerity which must be resolved in every case. It is, of course, a question of fact—a prime consideration to the validity of every claim for exemption as a conscientious objector.

The court in Seeger immediately noted that further acts were necessary to provide for the evaluation of the sincerity of claims of conscientious objectors.  The Arizona bill has not provided an enforcement mechanism, nor any guidelines for the determination of whether the refusal to engage in commerce with a person based on their sexuality or orientation can be determined to be held in a sincere and consistent way.  This means that one’s belief cannot be only that homosexuality is itself religiously wrong, but that commercial engagement with other people who are religiously wrong is itself prohibited by one’s religion.

More importantly, the standards for the determination of sincerity with respect to conscientious objection are inherently rooted in the individual, (the Welsh case discusses the problems with restricting this to “religious training and belief,” but imposes a similar level of requirement as to the depth and consistency of one’s convictions.)  The attempt to extend religious freedom to entities that are neither individuals (who have personal sincere beliefs) or religious organizations (who have explicitly articulated doctrines or long histories of sincere principles which are advocated as part of their mission) raises great questions for the enforcement of this law.  Can a corporation have sincere religious beliefs? Can a business wholly owned and managed by a sincerely religious individual?

The court has already ruled on similar questions regarding employers.  In 1982 United States v. Lee, the court held that even though Amish individuals could be exempted from paying social security taxes on grounds of religious objection, that Amish employers had no right to refuse to pay taxes on behalf of their employees.  The court has recognized that a business engaged in employment cannot claim religious freedom exemption.  (An article in The Atlantic this month rightly pointed out that the Lee case might prove crucial in the efforts of Hobby Lobby to use religious freedom to deny contraception coverage to its employees.) The relationship between businesses and employers is different than that between businesses and consumers, but the finding of the court remains that employers don’t have an overriding right to religious freedom in a way that supercedes their obligations as commercants.

These legal questions matter because if the Arizona bill (or a similar one in another state) becomes law and is challenged in court, it will probably be the legal history of religious freedom, not the recent history of developments in the regulation of sexuality (such as Lawrence v. Texas or US v. Windsor) that will probably determine the legal arguments against the “Gay Jim Crow.”

Update: After this was drafted, Gov. Brewer announced that she would veto SB1062 in the face of political opposition.  In her prepared remarks, Brewer stated: “I have not heard of one example in Arizona where a business owner’s religious liberty has been violated.” Especially as similar bills are still being considered, her continued implication that the right to decline commerce to people based on sexual identity as a matter of religious freedom remains an important political and legal issue.

Editor’s note. For further discussion of these issues on Notches also see:

Adam Shapiro is a lecturer in intellectual and cultural history at Birkbeck, University of London.  He works on the cultural history of America, particularly with social movements engaged with intersections of religion and life sciences.  His first book is Trying Biology: The Scopes trial, textbooks, and the antievolution movement in American schools (Chicago, 2013).  He also blogs at Trying Biology and tweets @Tryingbiology

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