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

Closely related to this question is another important component of the substantial burden inquiry: whether the practice is a sincerely held belief that is central to the religion. In order for a statute to impose a substantial burden on religious exercise, the practice in question must be religiously based. Sincerity sometimes will not be in dispute at all;103 if it is, however, the court needs to delve into the inquiry. Meanwhile, with respect to religiosity, the courts apply different rules, with some courts requiring only a showing that the conduct in question is "religiously based" (thus extending protection beyond religious rituals)104 and others delving much further in search of actual religious traditions.105 A court may also willingly separate the specific conduct in question from the religious tradition, a kind of fine-tuning which allows it to skirt the task of balancing controversial elements. 106

All told, the substantial burden threshold may very well help bar some challenges to antidiscrimination laws, thus leaving the case to be decided under the Smith test. However, the inquiries involved in determining if there is a substantial burden-including religiosity and sincerity of religious belief-are extremely muddy, and certainly raise questions about whether they are appropriate for the courts to make,107 or whether they can really be accomplished at all. 108 Cases like Gay Rights Coalition and Swanner demonstrate how unpredictable this part of the inquiry can be. Still, as will be more apparent in the next section, if the court is able to get past this threshold, it will go on to reach the far more complicated question of whether there is a compelling state interest.

B. THE COMPELLING STATE INTEREST: SECOND-GUESSING THE LEGISLATURE The government interest in eliminating discrimination on the basis of race has long been held to be a compelling state interest.109 Some commentators have argued that this should be the case regardless of whether the statute covers discrimination "on the basis of race, sex, religion, or sexual orientation."110 As a result, it may be that many civil rights statutes will be safe from exemptions even under the RLPA statutes. Indeed, this is precisely the result reached by Judge Mack, who found that eradicating discrimination on the basis of sexual orientation was a compelling state interest.111

Unfortunately, the subsequent case law does not clarify whether this approach will be taken by other courts. Judges do not give a great deal of deference to legislatures in determining what constitutes such a compelling interest. Even in Gay Rights Coalition, Judge Mack asserted that while the D.C. Council had expressed a strong and clear opinion that eradicating discrimination on the basis of sexual orientation was a compelling interest, that alone did not resolve the issue, and it was up to the court to make that final determination. 112

For gay rights activists, then, this key determination will be left in the hands of the judge. However, while addressing discrimination on bases like race, gender, and disability is a firm national policy, the same cannot be said for characteristics that receive lower levels of scrutiny in the courts, including sexual orientation.113 For these claimants, it is more likely that at least some courts will find that the governmental interest in ending discrimination is not compelling.