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

Ultimately, the debate over RLPA is a complex one that has several different dimensions. The following section will take a closer look at the two competing tests to demonstrate the differences.

A. THE SMITH TEST: RATIONAL BASIS REVIEW FOR NEUTRAL AND GENERALLY APPLICABLE LAWS Analyzing a religious free exercise defense to violations of a sexual orientation antidiscrimination statute would require a showing that such a statute is neutral and generally applicable.52 In Church of Lukumi Babalu Aye v. City of Hialeah,53 the Court explained that "if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral,"54 regardless of whether the governmental hostility is "masked" or "overt."55 In Lukumi Babalu, the Court struck down a local ordinance aimed at preventing religious animal sacrifices on the basis that the ordinance targeted the religious sect. 56

An example of how this test works is useful. In Swanner v. Anchorage Equal Rights Commission,57 the Alaskan Supreme Court used the Smith analysis to dispense with federal Free Exercise Clause claims made by a religious landlord who refused to rent apartments to unmarried couples in violation of a state statute forbidding housing discrimination based on marital status.58 The court first determined that the statute was neutral, in that it contained no language singling out any religious group or practice.59 The Swanner court then proceeded to determine that the law was generally applicable, because it applied to all persons involved in renting or selling property without specifying or implying applicability to any particular religious group.60 The court thus concluded that the Alaska statute met the requirements of the Smith test, vitiating the landlord's federal religious free exercise claim.61

There have been a number of other cases involving marital status as it relates to unmarried couples, and the courts' willingness to recognize a compelling state interest in that case-even in the face of a statute-has been mixed.62 The federal claim analysis in Swanner demonstrates the ease and simplicity with which the Smith test dispenses with the free exercise question. It would seem, based on the machinations of the Swanner court, that any well-drafted sexual orientation antidiscrimination law should survive the Smith test.63

B. THE STRICT SCRUTINY TEST: GAY RIGHTS COALITION OF GEORGETOWN UNIVERSITY LAW CENTER V GEORGETOWN UNIVERSITY Application of the compelling state interest test to gay rights statutes is a far more complicated matter than application of the Smith standard. It involves three main inquiries: (1) whether there is a substantial burden on the individual's (or institution's) free exercise of religion; (2) whether there is a countervailing compelling state interest; and (3) whether the mechanism of the statute is the least restrictive means (narrowly tailored) of meeting the goals of the compelling state interest.

A sexual orientation statute will not necessarily fail the test. In fact, in the major case directly addressing this issue-Gay Rights Coalition of Georgetown University Law Center v. Georgetown University``-the statute did pass the test. In Gay Rights Coalition, several gay students at the Jesuit institution decided to form two student groups: Gay People of Georgetown University (GPGU) at the undergraduate campus and the Gay Rights Coalition (GRC) of Georgetown University Law Center.65 The university denied the groups official recognition, a decision that prevented the groups from receiving university funds, subsidized office space, telephone services, supplies and equipment, and authorization to use the Georgetown University name.66 In a memorandum to the undergraduate student government, Dean W. Schuerman noted that recognition would "be interpreted by many as endorsement of the positions taken by the gay movement on a full range of issues," and that this would "be inappropriate for a Catholic University."67