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

In Gay Rights Coalition, Judge Theodore Newman wrote separately to express his disagreement with the degree of second-guessing employed by Judge Mack. "While the ultimate constitutional question is, of course, for the judiciary alone to decide," Judge Newman wrote, "the kind of legislative-like weighing of interests revealed by the lead opinion is inappropriate here."114 Judge Newman argued that greater deference should be given to the government for two primary reasons: First, the government holds the burden of proof on the issue, and thus substituting judicial opinion would render this burden "nugatory"; and second, the legislature has greater expertise than the courts for making such balancing assessments. 115

In making this second-guess determination, courts have used a wide range of means to find a lack of a compelling state interest. The first of these is other laws and statements of policy that either undermine or enhance the purpose of the statute in question. In Attorney General v. Desilets,116 the plaintiffs were an unmarried couple who attempted to rent an apartment from a landlord who refused to consider the lease based on his sincerely held religious belief that cohabitation outside of marriage was sinful.117 The plaintiffs alleged a violation of the Massachusetts housing statute, which made it unlawful to refuse to rent or lease on the basis of marital status.118 Applying the pre-Smith compelling interest test in interpreting the state free exercise clause,119 the court determined that because there was no constitutionally based prohibition against discriminating on the basis of marital status, eliminating such discrimination was of lesser state concern than eliminating discrimination based on other more traditional classifications. It ultimately concluded that there was no compelling state interest in prohibiting discrimination based on marital status, at least not one that would bridge the defendants' claimed free exercise exemption.120

In second-guessing the legislature, the court found two pieces of evidence to be determinative. First, the court noted that numerous Massachusetts statutes that granted rights to husbands and wives did not similarly extend those same rights to unmarried partners. 121 Thus, the court reasoned, the state had not consistently demonstrated, through its other legislative enactments, that it had a compelling interest in treating unmarried couples as a class deserving protection. Second, the court noted that other state statutes undermined the interest in preventing discrimination against cohabitating heterosexual couples, including the statute criminalizing fornication.122

Looking at the totality of the state's laws and policies with respect to a category of individuals may seem like a good way-perhaps the only way-to distill properly the state's interests for purposes of constitutional free exercise analysis. The problem with this type of reasoning, though, is that it interprets legal pronouncements in ways that the legislature probably did not intend. The little-enforced antifornication statute, for example, which the court itself noted might not be constitutional, could very well be construed as speaking to a different goal (such as regulating sexual morality) than does the marital status protection in housing (such as regulating the fluidity of the housing market).123