Analysis Law and Policy

Religious Accommodations Try to Turn Back the Clock

Elizabeth Reiner Platt

Although the U.S. Supreme Court called an attempt to discriminate based on a religious belief “patently frivolous” in one 1968 case, the proliferation of such laws today jeopardizes anti-discrimination efforts on multiple fronts nationwide.

“Oh, it’s a big problem with the members of my church, my community, and my mother-in-law .… They don’t allow that black and white shacking.”

That was the explanation Mississippi landlord Gene Baker gave for evicting Erica Flores Dunahoo and her husband, National Guard Sgt. Stanley Hoskins, from his RV park in February, Dunahoo told the Clarion-Ledger newspaper. Dunahoo, who is Latina and Native American, and Hoskins, who is Black, moved to another RV park with higher rent.

What’s even more troubling, however, is that some state laws recently introduced across the country would actually sanction this type of discrimination. While the couple’s eviction would likely violate the federal Fair Housing Act, which applies to most housing providers nationwide, some recently proposed state bills would create religious exemptions to state and local anti-discrimination laws—many of which provide important protections to people who may not be sufficiently covered by federal law. (As a side note, Mississippi is actually one of few states that has no state Fair Housing Act).

Just as the Civil Right Act of 1964 prompted segregationists to demand religious exemptions from the law, the gains of the LGBTQ rights movement has led to the introduction of dozens of state bills designed to provide individuals and companies with a license to discriminate based on their religious beliefs. While these new bills may be motivated by opposition to LGBTQ rights, it’s important to note that many of these vague, broad, and poorly worded bills would not just affect the LGBTQ community—they could also renew demands for a religious right to discriminate on the basis of race, sex, or other factors.

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Many academics, advocates, journalists, and politicians have already noted that today’s religious objections mirror those made by opponents of desegregation in the past. Religious exemptions from the Civil Rights Act were considered both by the legislature and by federal courts. But while there is a long history of religious resistance to desegregation, both Congress and the Supreme Court flatly rejected religious exemptions from anti-discrimination law in the 1960s.

An early version of the Civil Rights Act of 1964 excused religiously affiliated employers from compliance with the entire act. This was discarded, however, and Congress’ final draft of the Civil Rights Act only exempted religious organizations from religious discrimination provisions, so that they could give special preference to people who shared the organization’s religious faith.

Once the Civil Rights Act was passed, some business owners, like Maurice Bessinger of the South Carolina-based barbecue chain Piggie Park, argued in court that even without an exemption, under the First Amendment their religious beliefs should protect them from being forced to desegregate. In the 1968 case Newman v. Piggie Park Enterprises, Inc., the Supreme Court called the restaurant’s religious liberty claims “patently frivolous.”

Despite the fact that a religious right to segregation was prohibited decades ago, Dunahoo and Hoskins’ experience shows that religiously motivated racial discrimination is still alive and well today.

While some bills—like Missouri’s SJR 39, which died in committee in late April—focus more narrowly on religious objections to marriage between persons of the same sex, other bills would protect those who oppose interfaith or interracial marriage or even desegregation. Georgia’s HB 757, which was vetoed by Republican Gov. Nathan Deal in early April, could have allowed government clerks to refuse to provide marriage licenses to interracial couples or religious organizations to refuse to provide any “social, educational, or charitable services that violate such faith based organization’s sincerely held religious belief.” Kentucky’s SB 180, which passed the state senate in March and is now awaiting a vote in the house, contains similar provisions.

And while federal laws including the Civil Rights Act and the Fair Housing Act contain strong protections against racial discrimination, accommodations that close off discrimination claims based on state or local law are nevertheless significant.

Nearly every U.S. state and many municipalities have adopted at least some anti-discrimination protections in employment, housing, or public accommodations. These state- or local-level discrimination claims may be easier to litigate than federal anti-discrimination laws. For example, they may require a lower standard of proof to show that discrimination occurred. Additionally, state and local discrimination laws often cover smaller landlords or businesses than federal law. Finally, state and local claims may provide additional monetary damages or other forms of relief to those who face discrimination. By carving out religious exemptions from state and local anti-discrimination law, accommodation bills would force people of color and other marginalized populations to once again bear the burden of others’ discriminatory religious beliefs.

State laws that allow for religiously motivated discrimination would also close off other legal claims, such as those based on contract violations. For example, if a religiously affiliated company fired an employee for marrying someone of a different race, she may lose the right to sue based on breach of an employment contract if the employer is covered by a broad accommodation law.

Furthermore, it’s possible that those who wish to discriminate could also demand an exemption from federal anti-discrimination law under the Religious Freedom Restoration Act. This is the same law the craft store giant Hobby Lobby used to avoid providing its employees with contraception, as required by the Affordable Care Act.

In order to succeed with such an argument, a religious objector would have to show that hiring, housing, or serving a particular group of people (like interracial couples) would burden his exercise of religion. If this is the case, then he would win his claim unless the government could show that federal anti-discrimination law serves a “compelling government interest,” and there is no way of furthering that interest that is less burdensome to the objector’s religious exercise.

In Burwell v. Hobby Lobby, the majority opinion indicated that it believed the government does have “a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.” But the Court has not actually ruled on this issue, and its failure to find an overriding government interest in women’s health, dignity, and equality in Hobby Lobby does not bode well for future cases.

By allowing religion to be used as a veil for discrimination, state legislators are ignoring the lessons of history. In Newman v. Piggie Park Enterprises, Inc., the Supreme Court dismissed a broad religious liberty claim. The argument that personal religious beliefs may trump the most basic liberty and equality rights of others should be rejected with equal force today by state governments considering religious exemption bills, and by judges being asked to find a religious right to discriminate.

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