Sexual orientation antidiscrimination laws and the Religious Liberty Protection Act: The pitfalls of the compelling state interest inquiry

Georgetown Law Journal, Mar 2001 by Lin, Alvin C

INTRODUCTION

When the United States Supreme Court issued its landmark decision in Employment Division, Department of Human Resources of Oregon v. Smith1 it profoundly changed the landscape of religious free exercise jurisprudence. In Smith, the Court declined to apply the "compelling state interest" test, as it had in prior cases involving free exercise claims, and instead applied a "general applicability" standard. Smith sparked uproar and opposition throughout the country, and critics charged that the court had eviscerated the meaning of the Free Exercise Clause.2 At the behest of these critics, legislators at the federal and state levels sought to pass legislation that would bolster free exercise constitutional protections by reinstating the compelling state interest test. The Religious Freedom Restoration Act (RFRA),3 the Religious Liberty Protection Act (RLPA),4 and various state versions5 of these legislative acts have tried to make the "compelling state interest" test the law of the land in interpreting free exercise challenges. Most recently, Congress passed and President Clinton signed the Religious Land Use and Institutionalized Persons Act (RLUIPA),6 a significantly more targeted version of RLPA confined to the areas of land use regulation and institutions.7

With the exception of RLUIPA, most of these laws are sweeping proposals that apply broadly at all levels of government and to all types of legislation. However, their breadth presents a significant concern for civil rights activists,8 and in particular, for advocates of antidiscrimination laws on the basis of sexual orientation.9 In seeking to bolster religious free exercise protection for individuals and institutions, these RFRA/RLPA-like laws may roll back the Smith rule so far that they hinder the enforcement of antidiscrimination laws. This creates a problem; although the Free Exercise Clause was intended to protect free exercise of religion, it was not intended to be used as a tool for individuals seeking to bypass generally applicable antidiscrimination laws. The effect of broad RLPA statutes10 is to provide a religious excuse not to abide by antidiscrimination laws. Seeking broadness and uniformity of the rule for religious free exercise through legislative enactments may come at the expense of similar broadness and uniformity for the protected civil rights group. Given these concerns, major gay rights groups and organizations, including the American Civil Liberties Union (ACLU), opposed the 1999 RLPA proposals without an exemption for civil rights laws.11

Of course, one possible solution might be to exempt civil rights statutes from the reach of these laws. This is the approach taken, for example, by the Texas RFRA statute. 12 Federal RLPA proponents, however, argue forcefully against carve-outs for specific categories of legislation. As one advocate noted while testifying in favor of RLPA, "Religious freedom ought to be indivisible."13 Exemptions, then, work only to undermine the legislative enactment.14

Ultimately, broad RLPA statutes raise three primary concerns from the standpoint of gay rights activists. First, the compelling state interest test is significantly more complicated than the general applicability test. It allows-indeed it requires-inquiries into religiosity and sincerity to determine if a burden on free exercise is "substantial." If so, the court then makes its own determination of whether the state's interest is compelling. The court is free to dismiss legislative intent in the antidiscrimination statute itself. Particularly given the many negative attitudes and mistaken perceptions of homosexuality in society, as well as the somewhat dismissive treatment in the jurisprudence, the leeway provided to the courts by the test is troubling. It is not entirely clear that even a well-drafted sexual orientation antidiscrimination statute will survive intact-with no exemptions-in the face of religious free exercise claims.

Second, RLPA statutes raise legislative choice and separation of powers tensions. Ironically, RLPA statutes shift the inquiry from the legislature to the judiciary, giving greater discretion to the courts in determining exemptions. However, this shift of responsibilities creates tension among different legislating bodies-the Congress vis-a-vis state and local legislatures, as well as state legislatures vis-a-vis local legislatures-in that it takes the first entity's determnation regarding religious free exercise and uses it (in the form of the compelling state interest test) to determine whether there should be a free exercise exemption to the state or local antidiscrimination ordinance.15 From the standpoint of the gay community, which has won some legislative successes but is still a political minority, ensuring that federal pronouncements do not trump local ones is a primary political concern.

Third, exemptions for religious free exercise from sexual orientation antidiscrimination statutes undermine the two underlying purposes of the statutes: (1) eliminating from decisionmaking (such as in hiring or leasing) irrelevant moral objections to somebody's sexual orientation; and (2) making a symbolic gesture of acceptance and tolerance of homosexuality. Providing religious exemptions actually re-injects the "morality" determination into decisionmaking involving a gay person in a way that is antithetical to the antidiscrimination statute itself. Ultimately, such exceptions undercut the message of inclusiveness intended by these laws.